Jen's Paper on Discretion

Precedent is any decision, ruling or case that is used as a justification or guide for ensuing similar situations. Precedent has been implemented for more than a century in the legal profession. It would seem that changes in the law would be extremely difficult if precedent was cited for every case. The previous rulings would simply be upheld. Case closed. However, Llewellyn states that there are two opposing interpretations of precedent – the strict view and the loose view.

The strict view, as Llewellyn refers to it, is used by legal professionals when a precedent is undesirable. By applying this interpretation, the court is able to break away from prior cases and decide a different outcome of a similar case. It essentially frees the judge from the past, without stating that a prior case was necessarily wrong, just that there are certain facts that make the current case different.

The loose view is contradictory to the strict view. Executing the loose view is advantageous when a lawyer or judge would like to apply precedent to the current case. It does not always matter what the facts or issues were in the earlier case, just that the ruling may be desirable for the courts to uphold.

In State v. Thompson in 2002, a man was caught trapping beavers out of season on his mother’s property in South Carolina and was given a fine by the Department of Natural Resources. Thompson argued that he had a right to protect private property from the beavers, who were damaging the land by converting it into swamp land as well as inflicting damage his mother’s trees. While the property was not his own, the definition of private property states that a person can designate another as partial protector or owner. The court sided with the South Carolina and ordered Thompson to pay the fine.

In State v. Thompson, Christy v. Hodel was cited as precedent. In Christy v. Hodel, Christy killed a grizzly bear (which is protected under the Endangered Species Act) because it was killing his sheep, which he claimed as private property. The court upheld the Endangered Species Act. Therefore, in State v. Thompson, the precedent from Christy v. Hodel was used in what Llewellyn describes as the loose view. Precedent was capitalized upon and used advantageously. The courts did not try to break away from the past by siding with Thompson – and so according to Llewellyn – the court decided to implement the loose view of precedent.

Unless otherwise stated, the content of this page is licensed under Creative Commons Attribution-NonCommercial-ShareAlike 3.0 License