When observing court cases, I’ve often been irritated by the doctrine of judicial precedent. This doctrine, centuries old and inherited from the British, says that once a court has decided a case in a particular way, all future courts faced with similar cases must follow the original decision. The doctrine of precedent is not perfectly strict, of course, and no two cases are exactly alike, but it is remarkably powerful nonetheless. For example, American lawyers routinely cite precedent from British courts of the 1600s, as they are considered part of a continuous legal stream with the current judicial system. (There was even a kerfuffle a few years ago regarding citation of international precedents, but never mind.)
Precedent has always bothered me. I’ve found myself increasingly angry with court decisions that seem to use precedents, including deeply problematic ones, to avoid facing up to critical aspects of the case at hand. I’m particularly thinking of intellectual property cases (something that affects me a great deal as a computer programmer), which seem rarely to be decided on their own merits. The landscape of information technology has changed so entirely in the past twenty years that all prior precedents may as well have been written in an alternate universe. This has caused me to wonder: “what is the purpose of precedent?”
Cynically, I sometimes suspect that the purpose of the doctrine of precedent is to make life easier for judges, by allowing them to avoid intellectual responsibility for determining a verdict. However, I’ve recently come to another conclusion: the doctrine of precedent is estoppel on the courts.
Estoppel is another legal doctrine, much more broadly applicable and extremely commonsense. It says, in its simplest form, that if I “induce an expectation” in you, then I cannot sue you for actions you take based on that expectation. For a trivial example, if I put out a table full of oranges on the sidewalk with a big sign that says “FREE ORANGES COME GET SOME”, then I can’t sue you for damages when you take an orange without asking. In this simplest form, almost every legal doctrine has some basis in Estoppel. (Estoppel actually goes much further: the sign’s message could be much more ambiguous, but as long as reading it would induce a reasonable expectation that they are free for the taking, there can be no liability.)
When attempting to determine whether an action I wish to take is legal, the best answer I can get is to see if anyone has ever been found guilty/liable for a similar action in the past. If someone has taken a similar action, and been cleared by a court, then I have a reasonable expectation that I may safely take the same action myself. If my action led to a court case that came to the opposite conclusion, this would be unfair in a rather serious way… and in precisely the way the Estoppel seeks to prevent.
So now I have a renewed appreciation for the doctrine of precedent (which is not to say that I’m any happier about modern intellectual property law).