Chapter 1
Lawmaking and Precedent
Intro.
Holmes: Practice of law is predicting what courts will do.
1.1 The Bramble Bush, Llewellyn
A. Precedent defined
B. Advantages of precedent
a. Predictability
b. New official can build on wisdom of previous officials
c. Public check on corruption
1.2
State v. Pendergrass
A. Intro to cases
a. Citation, name of case
b. Judge’s name
c. Facts
d. Question presented
e. Holding or ruling
f. Reasoning
B.
State v. Pendergrass, 2
a. Facts: Teacher whipped student with a switch. It left marks. In addition, there were marks from something blunter than a switch. All the marks disappeared in a few days. Jury convicted for assault and battery.
b. Question Presented: Was teacher’s action privileged and within her authority?
c. Holding. Reversed. Teacher acted within authority because injuries were not permanent.
d. Reasoning. Teacher stands in place of parents. Physical discipline is sometimes necessary. So long as there is no malice or permanent injury, teacher acts within authority.
1.3 Joyner v. Joyner, 59 N.C. 322 (1862)
Facts: Wife sought divorce. W alleged H beat her with a horse whip and a switch. W was from a respectable family and believed this beneath her. He also abused and insulted her.
Question presented: Did W plead adequate grounds for divorce?
Holding: No. W must plead time and circumstances, and show that H went beyond his authority. Beating alone does not constitute grounds for divorce.
Reasoning: Judge cites Bible and tradition for putting H in authority over W. That is taken to mean that physical discipline is sometimes necessary. Statute requires pleading with particularity, which court takes to mean that circumstances in divorce petition must show that H acted beyond a “normal beating.”
1.4 State v. Black, 60 N.C. 262 (1864)
Facts: W started a quarrel. H lashed out, and pulled her on the floor by her hair. He did not hit her or choke her.
Question Presented: Did H have privilege against assault charge? Did it matter that H and W were living apart at time of incident?
Holding: Yes, H did not exceed authority, and judge should have directed verdict in favor of H. No, there is no legal divorce, so H still have privilege.
Reasoning: H is responsible for acts of W, and therefore must be able to discipline her. Here, W provoked H, and he did not permanently hurt her (note, it’s not clear if provocation is justification or not). Also, H is still responsible for W even if they live apart, so he still has right to discipline.
1.5 State v. Rhodes, 61 N.C. 453 (1868)
Facts: H hit W three times with a switch about the size of his finger.
Question presented: May H use moderate correction on W, even if W does not provoke H?
Holding: If no permanent or malicious injury, court will not second guess H.
Reasoning: Earlier cases do not control. Public show would be even worse than the beating. Court does not have the resources to deal with every one of these cases.
1.6 State v. Mabrey, 64 N.C. 592 (1870)
Facts: H and W had argument. H threatened to leave her. She started to leave, he caught her, said he would kill her, and tried to stab her with a knife. He tried again, but a bystander stopped him. W ran away, and H told her not to come back or he would kill her. Trial judge directed verdict in favor of H.
Question presented:
Holding: No.
Where deadly force is threatened, H exceeds privilege of
Reasoning: Trying to stab and kill W is not “moderate correction.”
1.7 More Bramble Bush
Legal realism explained.
Orthodox doctrine of precedent says every case lays down a rule of the case. Later court is supposed to follow it.
However, subsequent courts can
distinguish earlier case, and limit it to its particular facts. Example:
Cases about redheaded
Strict view of precedent: You must look at the particular facts of the case to determine its value as precedent. This allows you to get rid of cases you do not like.
Loose view of precedent: You must look at the language of the case, what the judge said, to determine the value as precedent. This allows you to build up cases that help your cause.
Good judges and lawyers use both, to knock out bad precedents and build up favorable precedents. That leaves a skillful judge free to determine the case at hand as the judge sees fit.
1.8 State v. Oliver, 70 N.C. 60 (1874)
Facts: Indictment for assault and battery. H came home drunk. He was unhappy with breakfast, threw a fit, got a switch, yelled at W, and hit her five times.
Question presented: Does H have privilege to hit W with a switch?
Holding: No. Here, there was malice and cruelty, so H is guilty.
Reasoning: Most jurisdictions are getting away from the barbaric rule that H may beat W. Each case must be taken on its own circumstances. Here, there is enough to convict. Court still does not want to hear “trivial” complaints, but seems to be limiting H’s privilege.
1994 Violence Against
Women Act attempted to protect women from crimes based on gender. S.Ct. struck down
the law, stating that it went beyond Congress’s Commerce Clause authority.
Notes on Critical Thinking
A. Critical thinking defined: A method using evidence to evaluate conflicting beliefs. Critical thinkers analyze the quality of evidence to support assumptions and beliefs, usually to decide what to believe or what decision to make. Sometimes called rationalism.
B. Compare.
a. Authoritarianism. Accepting the assertions of recognized authorities.
b. Credulity. Believing or deciding without seeking or evaluating evidence.
c. Bias. Beliefs and decisions that spring from emotion.
C. Weaknesses of Critical Thinking
a. Many important parts of life cannot be proven by evidence.
b. CT has a very hard time with emotion and values.
c. No individual has the expertise or time to critically think about everything.
d. Critical thinking pushes creativity to the side.