Andrea P.

Andrea Petitjean
In Llewellyn’s writing he mentions two different ways to look at precedents. One he called the strict view and the other the loose view. Now it sounds like the strict view would be the one that the judges follow past precedents made on a case no matter what; however, that is actually complete opposite. The loose view on precedents, as Llewellyn would say, is “that the court has decided, and decided authoritatively, any point or all points on which it chose, after due arguments, to pass. No matter how board the statement…” and furthermore. In our terms, this pretty much just tells us that the judges and lawyers with this loose view of precedents will make their decision based on what past cases were. Then there is the other view, the strict view that gives the judges and lawyers a new lead. It’s the view “that cuts the past away” as Llewellyn described it well. This is where the lawyers and judges are free from the past and make their decisions just based on the case information and their moral thinking from right and wrong.
These views are seen in a lot of different courts. A good example for loose view is a series of court cases that are in the book. This is State v. Mabrey; this case was a divorce request from the wife for the husband and the wife got into a disagreement, he started it, but it ended wrongly. The man threatened her life and tried to stab her with a knife, a bystander stopped him. The judge’s ruled that the courts will not interfere based on a precedent, State v. Rhodes. That case was somewhat different, there was no life threatening involved, just an argument between wife and husband and husband beat the wife with a swipe. No permanent damage has the courts proclaimed so they were not going to intervene in the “family courts”. These might have been bad decision especially for the first precedent mentioned but they were ruled in that manner; very loose view of precedents.
The second view, the strict view of precedents, happens a lot when older cases are not modernized per say. This is because no days if a person was to go to court over their husband beating them and threatening their life with witnesses, like that bystander, that husband would not just get off the hook because previous cases were ruled in that way. No times have changed and that’s just one good reason not to follow some of the previous precedents. So an example of the strict view would be the Plessy v. Ferguson case and the case Brown v. Board of Education. The Plessy v. Ferguson case back in 1896 ruled “separate but equal” this went to everything; however, it was never really followed correctly but the importance here was the outcome of the court ruling. Furthermore, a few years after that, 1954, the Supreme Court in Brown v. Board of Education pronounced that “separate but equal” does not apply to education, that blacks were not to have the quality of education that whites have. This is solely wrong in many ways but that is how it was ruled and the judges were free from the past precedent and ruled on what they wanted. They didn’t follow the precedent and if you ask me they were stupid for doing that.
Anyways, no matter how unfairly the courts may rule or how just, they have a lot of “power” in the law. Either way they, the judges and lawyers, want to use the strict or the loose, they should be in unison with on another during the case or it might not turn out so good for the defendant. Moving on that’s Llewellyn’s two different approaches to precedents and examples of both.

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