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> They do not respect precedence This is tangential, but deference to precedent has become a huge problem in US and UK Commmon Law. So much case law has built

> They do not respect precedence This is tangential, but deference to precedent has become a huge problem in US and UK Commmon Law. So much case law has built up over the centuries that you can find a precedent to support almost any position! The "legal research" battle -- like the "discovery" battle -- just adds tremendous time, expense, and complexity, and rarely or indeed almost never benefits the litigants or the court.

sieve 1y ago
While no system is perfect, and it might be a case of the grass being greener on the other side, I have some healthy respect for the US system. I am not a fan of the UK system which we have copied almost wholesale. The laws and judgments I occasionally see from there are eerily similar to what we deal with here. As for precedent, yes, things accumulate over time, but by-and-large precedent = predictability. And that is completely missing from our system.
- jbstack 1y ago
  Out of curiosity, what is it you don't like about the UK system given that you're saying that it's "eerily similar" to the US system? As someone who works in the UK system, I can point to two things I don't like about the US system. Firstly, the inability to recover costs in most cases. This leads to an abundance of litigation (because a party with a weak case has little to lose by trying anyway). It also produces unfair results (because the principle of justice should put the winner in the position they would have been if they hadn't been wronged, but it doesn't because they have to bear their litigation costs). Secondly, the politicisation (and in my view corruption) of the judicial system. We don't have "Conservative" or "Labour" judges here, and it's extremely weird to me that you can have "Republican" or "Democrat" judges given that a judge is supposed to just interpret the law in an unbiased way without regard to their political opinion. To me it seems that Supreme Court decisions are openly corrupt given how often the opinions are divided straight down party lines: statistically you should expect a random mix of Republican and Democrat judges adopting each side.
  - sieve 1y ago
    > Out of curiosity, what is it you don't like about the UK system given that you're saying that it's "eerily similar" to the US system? I was comparing the Indian system to the UK and US ones. I will still take the US system, warts and all, over the Indian or UK one. I used to be a free speech absolutist in the past. Not anymore, though I still prefer more free speech to less. The UK and India are terrible at protecting free speech. And the laws dealing with defamation/libel are bonkers based on what Simon Singh had to go through. The second issue I have is with handling of violent crime in general and that by juveniles in particular. The Nirbhaya case is a great/famous example (and the special treatment continues to this day)[1]. Four were hanged. The fifth died in police custody. The sixth rapist-murderer was 17y6m old and was sent to a juvenile home. You have something similar in the UK. In the US, all of them would have faced severe consequences. [1] https://en.wikipedia.org/wiki/2012_Delhi_gang_rape_and_murder https://en.wikipedia.org/wiki/2012_Delhi_gang_rape_and_murde...
    - jbstack 1y ago
      > I used to be a free speech absolutist in the past. Not anymore, though I still prefer more free speech to less. The UK and India are terrible at protecting free speech. And the laws dealing with defamation/libel are bonkers based on what Simon Singh had to go through. I thought we were talking about the legal system, not the laws themselves. You can have a great legal system with terrible laws, or a terrible legal system with great laws. You can't blame the legal system for the fact that Parliament decides to pass a law which restricts free speech: it's not the role of the judiciary to decide what laws should be passed; rather, the role of a well functioning judiciary is to ensure that it applies and interprets the law (as it finds it) accurately and fairly regardless of the content of that law.
j45 1y ago
Precedence should be one consideration, like context, and maybe not too much interpretation or opinion.
deleted 1y ago
[deleted]
troad 1y ago
Strong disagree. A competent lawyer can usually see where the weight of precedent lies, and it's extremely helpful to have that precedent for legal clarity and prospective decision making. Statute law cannot cover every case, and systems that pretend it can end up being hopelessly vague and unclear. Common law is great. I'm much more uneasy about the alternative - i.e. legal systems where people become judges not long out of law school, with little real world experience, and proceed to make decisions that profoundly affect people's lives and livelihoods without feeling bound by precedent or being expected to explain their reasoning in any great amount of detail. Also, word note, precedence means 'which things have priority over others?', whereas a precedent is 'something that has happened before'. A car at a green light has precedence, but the common law has precedents.
- A_D_E_P_T 1y ago
  > A competent lawyer can usually see where the weight of precedent lies, and it's extremely helpful to have that precedent for legal clarity and prospective decision making. I've seen cases where Side A has 10 examples of case law that support their position, which they use in their motions and filings -- and Side B has 10 counterexamples of caselaw that support the opposite position, which they also use. The Judge, who is a very busy man, simply cannot research the issue in exhaustive detail, so de facto isn't "bound by precedent" -- he rules in favor of the side he's inclined to support. (Posner was briefly derided for laying this bare.) It's a major problem. When you have literal mountains of case law (IIRC all US court decisions in plaintext come out to something like 1.5TB) just about any litigant can find case law to support almost any position. You end up with a system that's much like the Civil Law, but with the added burden of "research."
  - troad 1y ago
    > I've seen cases where Side A has 10 examples of case law that support their position, which they use in their motions and filings -- and Side B has 10 counterexamples of caselaw that support the opposite position, which they also use. Sure, and there are people who can array thousands of pages of evidence that vaccines cause space reptilism and chronic nosehair. Doesn't mean it's good evidence. The basic tradecraft of a lawyer is to figure out what the weight of the precedent on a given question is. Your argument seems to be that the very existence of any doubt, no matter how implausible or infrequent, means we might as well all give up on the rule of law and return to monkey. Which seems a rather nihilistic take for a system that works quite well, despite the difficult trade-offs inherent in it. > The Judge, who is a very busy man, simply cannot research the issue in exhaustive detail That's what clerks are for. A judge has staff! And usually a solid intuition for what the law is, built on decades of experience practicing in the field. That's why we tend to appoint our judges from experienced practitioners, and not fresh law school grads. This is admittedly a much worse issue at the lowest levels - magistrates who deal with petty theft and the like. Those people are often fairly incompetent, sadly, but I'm not aware of any legal system that's managed to systematically solve this issue. > It's a major problem. When you have literal mountains of case law (IIRC all US court decisions in plaintext come out to something like 200TB) The vast majority of this is lower court decisions that won't be binding precedent almost anywhere.
mistrial9 1y ago
> So much case law has built up over the centuries that you can find a precedent to support almost any position! that is FUD, and irresponsible to repeat

sieve 1y ago

While no system is perfect, and it might be a case of the grass being greener on the other side, I have some healthy respect for the US system. I am not a fan of the UK system which we have copied almost wholesale. The laws and judgments I occasionally see from there are eerily similar to what we deal with here. As for precedent, yes, things accumulate over time, but by-and-large precedent = predictability. And that is completely missing from our system.

jbstack 1y ago
Out of curiosity, what is it you don't like about the UK system given that you're saying that it's "eerily similar" to the US system? As someone who works in the UK system, I can point to two things I don't like about the US system. Firstly, the inability to recover costs in most cases. This leads to an abundance of litigation (because a party with a weak case has little to lose by trying anyway). It also produces unfair results (because the principle of justice should put the winner in the position they would have been if they hadn't been wronged, but it doesn't because they have to bear their litigation costs). Secondly, the politicisation (and in my view corruption) of the judicial system. We don't have "Conservative" or "Labour" judges here, and it's extremely weird to me that you can have "Republican" or "Democrat" judges given that a judge is supposed to just interpret the law in an unbiased way without regard to their political opinion. To me it seems that Supreme Court decisions are openly corrupt given how often the opinions are divided straight down party lines: statistically you should expect a random mix of Republican and Democrat judges adopting each side.
- sieve 1y ago
  > Out of curiosity, what is it you don't like about the UK system given that you're saying that it's "eerily similar" to the US system? I was comparing the Indian system to the UK and US ones. I will still take the US system, warts and all, over the Indian or UK one. I used to be a free speech absolutist in the past. Not anymore, though I still prefer more free speech to less. The UK and India are terrible at protecting free speech. And the laws dealing with defamation/libel are bonkers based on what Simon Singh had to go through. The second issue I have is with handling of violent crime in general and that by juveniles in particular. The Nirbhaya case is a great/famous example (and the special treatment continues to this day)[1]. Four were hanged. The fifth died in police custody. The sixth rapist-murderer was 17y6m old and was sent to a juvenile home. You have something similar in the UK. In the US, all of them would have faced severe consequences. [1] https://en.wikipedia.org/wiki/2012_Delhi_gang_rape_and_murder https://en.wikipedia.org/wiki/2012_Delhi_gang_rape_and_murde...
  - jbstack 1y ago
    > I used to be a free speech absolutist in the past. Not anymore, though I still prefer more free speech to less. The UK and India are terrible at protecting free speech. And the laws dealing with defamation/libel are bonkers based on what Simon Singh had to go through. I thought we were talking about the legal system, not the laws themselves. You can have a great legal system with terrible laws, or a terrible legal system with great laws. You can't blame the legal system for the fact that Parliament decides to pass a law which restricts free speech: it's not the role of the judiciary to decide what laws should be passed; rather, the role of a well functioning judiciary is to ensure that it applies and interprets the law (as it finds it) accurately and fairly regardless of the content of that law.

j45 1y ago

Precedence should be one consideration, like context, and maybe not too much interpretation or opinion.

deleted 1y ago

[deleted]

troad 1y ago

Strong disagree. A competent lawyer can usually see where the weight of precedent lies, and it's extremely helpful to have that precedent for legal clarity and prospective decision making. Statute law cannot cover every case, and systems that pretend it can end up being hopelessly vague and unclear. Common law is great. I'm much more uneasy about the alternative - i.e. legal systems where people become judges not long out of law school, with little real world experience, and proceed to make decisions that profoundly affect people's lives and livelihoods without feeling bound by precedent or being expected to explain their reasoning in any great amount of detail. Also, word note, precedence means 'which things have priority over others?', whereas a precedent is 'something that has happened before'. A car at a green light has precedence, but the common law has precedents.

A_D_E_P_T 1y ago
> A competent lawyer can usually see where the weight of precedent lies, and it's extremely helpful to have that precedent for legal clarity and prospective decision making. I've seen cases where Side A has 10 examples of case law that support their position, which they use in their motions and filings -- and Side B has 10 counterexamples of caselaw that support the opposite position, which they also use. The Judge, who is a very busy man, simply cannot research the issue in exhaustive detail, so de facto isn't "bound by precedent" -- he rules in favor of the side he's inclined to support. (Posner was briefly derided for laying this bare.) It's a major problem. When you have literal mountains of case law (IIRC all US court decisions in plaintext come out to something like 1.5TB) just about any litigant can find case law to support almost any position. You end up with a system that's much like the Civil Law, but with the added burden of "research."
- troad 1y ago
  > I've seen cases where Side A has 10 examples of case law that support their position, which they use in their motions and filings -- and Side B has 10 counterexamples of caselaw that support the opposite position, which they also use. Sure, and there are people who can array thousands of pages of evidence that vaccines cause space reptilism and chronic nosehair. Doesn't mean it's good evidence. The basic tradecraft of a lawyer is to figure out what the weight of the precedent on a given question is. Your argument seems to be that the very existence of any doubt, no matter how implausible or infrequent, means we might as well all give up on the rule of law and return to monkey. Which seems a rather nihilistic take for a system that works quite well, despite the difficult trade-offs inherent in it. > The Judge, who is a very busy man, simply cannot research the issue in exhaustive detail That's what clerks are for. A judge has staff! And usually a solid intuition for what the law is, built on decades of experience practicing in the field. That's why we tend to appoint our judges from experienced practitioners, and not fresh law school grads. This is admittedly a much worse issue at the lowest levels - magistrates who deal with petty theft and the like. Those people are often fairly incompetent, sadly, but I'm not aware of any legal system that's managed to systematically solve this issue. > It's a major problem. When you have literal mountains of case law (IIRC all US court decisions in plaintext come out to something like 200TB) The vast majority of this is lower court decisions that won't be binding precedent almost anywhere.

mistrial9 1y ago

> So much case law has built up over the centuries that you can find a precedent to support almost any position! that is FUD, and irresponsible to repeat