Shelbi B's Paper on Precedent

In Karl Llewellyn’s “The Bramble Bush”, he says, “precedent consists in an official doing over again under similar circumstances what has been done by him or his predecessor before” (5). Llewellyn says that officials can take one of two views when deciding whether or not to use precedent, either a strict or a loose view.

Llewellyn defines the strict view as an “orthodox view of the authority of precedent” (16). This orthodox view looks strictly at the facts surrounding a case, noticing how the present case differs from every case that came before it, therefore the present case is not subject to precedent. It is an official’s way of avoiding precedent without insinuating that the court’s prior decision has been wrong.

Llewellyn says the loose view of precedent is “the view that a court has decided, and decided authoritatively, any point or all points on which it chose to rest a case, or on which it chose…to pass” (16). In other words, officials can take the loose view of precedent when deciding a case which is similar to a case that has already been decided. Because the main points of the cases are similar, precedent can be used to show that they should be decided in similar ways, even if the details of the cases are different.

The court in Susquehanna Fertilizer Co. v. Malone 20 A. 900 73 Md. 268 (1890) decided to use the precedent created by the decision in Poynton v. Gill. In Poynton v. Gill, it was decided that “…an action…would lie for melting lead so near the plaintiff’s house as to cause actual injury to his property, even though the business was a lawful one and one needful to the public” (91). Judge Robinson decided that this previous case paralleled the present one, and used this precedent to give a similar ruling. Thus, this exemplifies the loose view of precedent.

However, the court in Madison v. Ducktown Sulphur, Copper & Iron Co. 83 S.W. 658, 13 Tenn. 331 (1904) used the strict view of precedent. Judge Neil mentioned the precedent established in Susquehanna Fertilizer Co. v. Malone, but he disregards it, saying, “…the granting of an injunction is not a matter of absolute right, but rests in the sounds discretion of the court, to be determined on a consideration of all of the special circumstances of each case, and the situation and surroundings of the parties, with a view to effect the ends of justice” (94). Judge Neil reasons that since Ducktown Sulphur, Copper & Iron Co has such an important and integral part of the surrounding community, the circumstances surrounding this case differ from those surrounding the Susquehanna Fertilizer Co. v. Malone, and that it is free of the precedent that was established. This exemplifies the strict view of precedent, used by an official to get around a precedent that goes against their wishes.

After studying precedent and the effect it has on a court’s rulings, it is my opinion that a middle ground must be reached. Without precedent, a judge could be tyrannical, making whatever decisions benefit him or her. But with precedent, a judge could be blind to what the best possible decision is. So it is my opinion that both the strict view and the loose view of precedent should be applied to cases; a judge should look both at the wisdom of the past and at the improved knowledge of the present.

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