Bad law

Last updated

Bad law may [1] be considered to include unsound interpretation of legal principles, [2] or a proposition of law that is erroneous, or an attempted statement of the law that is inaccurate, or non-law.

Contents

Walker Marshall[ who? ] said that bad law is in many instances nothing else than bad logic. [3]

Case law

The following may be considered bad law:

A case may be reckoned bad law for some years but never actually overruled. Fitzroy v Gwillim [7] and Corbett v Poelnitz [8] are examples of such cases. [9]

The Roberts' Doctrine implied that the Supreme Court of the United States could follow a decision that was bad law in certain circumstances. This doctrine was established by the decision in West Coast Hotel Co. v. Parrish (1937), and abolished by the decision in Erie Railroad Co. v. Tompkins (1938). [10]

Wrongly decided

Edwin Bell said: An advocate may have to argue that a decision which is a direct authority against him, although it has been accepted as law and followed in numerous cases, was wrongly decided and is what lawyers call "bad law", and should be overruled. [11]

The case of Mills v Armstrong [12] is an instance in which a previous decision in Thorogood v Bryan [13] was overruled on the ground that the decision was opposed to principles of justice. In Thorogood v Bryan the personal representatives of a deceased person brought an action against the owner of an omnibus by which the deceased was run over and killed. The omnibus in which the deceased had been carried had set him down in the middle of the road, instead of drawing up to the curb; and before he could get out of the way he was run over by the defendant's omnibus, which was coming along at too rapid a pace to be able to pull up. Both drivers were found guilty of negligence, but it was held that the plaintiff was not entitled to recover, on the principle that a passenger identifies himself with the conveyance in which he is travelling, and if the driver is guilty of negligence, his fault is imputed to the passenger. [14]

In Mills v Armstrong, a collision occurred between the steamship Bernina and the Steamship Bushire, the result of which was that Armstrong, the first engineer of the Bushire was drowned. The collision was caused by the negligence of those in charge of both ships, and the action was brought by the personal representatives of Armstrong against the owner of The Bernina to recover damages for his death. It was argued that the plaintiff could not recover on the principle laid down in Thorogood v Bryan. But it was held by the House of Lords that the case of Thorogood v Bryan was wrongly decided, and the principle of it was overruled. [15]

Erroneous

In Butler v Van Wyck (1841), Bronson J, dissenting, said:

It is an elementary principle, that an erroneous decision is not bad law; it is no law at all. It may be final upon the parties then before the court, but it does not conclude other parties having rights depending upon the same question. [16]

In Bradshaw v Duluth Imperial Mill Co (1892), Mitchell J said:

But aside from this, it is an elementary principle that an erroneous decision is not bad law; it is no law at all, and never was the law. It is the law of the particular case, and is binding on the parties before the court, but does not conclude other parties having right depending on the same question. [17]

In 1860, Walker Marshall said:

Erroneous decisions on points of law may be conveniently classed under three heads . . . secondly, the propounding of a proposition to be law which is not so, embracing all that wide field of misdecision commonly called bad law, and comprehending the numerous class of cases where the question turns upon the rules of construction to be applied to charters, grants, and contracts, &c. . . . (2.) The second kind of misdecision is that which is called bad law—that is, a misapprehension of the rule of the common law; for our present purpose including in the term "Common Law" that comprehensive branch technically called "Equity." But the common law can be no more affected by a misconception of what it inculcates than the written letter of a statute can be. In other words, an induction from false premises, or upon fallacious reasoning, can never be sound sense, and therefore it can never be sound law. After the Court of Queen's Bench had laid it down, in a case to which I shall refer presently, that a man on horseback might be impounded with his beast if taken damage feasant; the owner of a field, who seized a trespasser under these circumstances after this decision, offended as much against the law, and was equally responsible for the assault as if his right so to do had never been erroneously affirmed. After the decision of Godsall v. Boldero, 9 East 72, policies of life assurance were not contracts of indemnity, notwithstanding it had been erroneously decided in that case that they were. So, if a tribunal were to give judgment upon an erroneous opinion that a particular custom was unreasonable, the contracts of parties having reference to the custom would be as much controlled by it after as before this decision. And so of all judgments not in rem. [18]

"Bad Ellenborough law"

As to the suppression of the publication of bad law by law reporters: Lord Campbell said:

Lord Ellenborough ought to have been particularly grateful to me for suppressing his bad decisions. Sir James Mansfield, Chief Justice of the Common Pleas, according to Taunton, observed: 'Whoever reads Campbell's Reports and considers the many new and difficult questions which came before Lord Ellenborough, must be surprised to find how uniformly right he is in his decisions.' The wonder may a little abate when I state my 'garbling process'. Before each number was sent to the press I carefully revised all the cases I had collected for it, and rejected such as were inconsistent with former decisions or recognised principles. When I arrived at the end of my fourth and last volume, I had a whole drawer full of 'bad Ellenborough law'. The threat to publish this I might have used as a weapon of offence when he was rude to me; but his reputation is now secure, for the whole collection was reduced to ashes in the great fire in the Temple. [19]

Lord Campbell's reference to bad law was a reference to wrongly decided cases. [20] Robert Deal said that because the "bad Ellenborough law" is no longer extant, it is not possible to be certain that it actually was bad. [21] The Law Journal said that Campbell's drawer for Lord Ellenborough's bad law was probably opened rather too arrogantly. [22]

The Law Quarterly Review said of the Year Book report at 30 & 31 Edw 1 Br Chr 30, i 506: "Brave reporter! This is better than surreptitiously keeping a drawer like Campbell for Ellenborough's bad law." [23]

Error of law

In Edwards v Bairstowe (1956), Lord Radcliffe said "If the case contains anything ex facie which is bad law and which bears upon the determination, it is obviously erroneous in point of law." [24]

See also

Related Research Articles

<span class="mw-page-title-main">Common law</span> Law created by judicial precedent

Common law is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions.

Precedent is a principle or rule established in a legal case that becomes authoritative to a court or other tribunal when deciding subsequent cases with similar legal issues or facts. The legal doctrine stating that courts should follow precedent is called stare decisis.

Judicial independence is the concept that the judiciary should be independent from the other branches of government. That is, courts should not be subject to improper influence from the other branches of government or from private or partisan interests. Judicial independence is important for the idea of separation of powers.

Case law, also used interchangeably with common law, is a law that is based on precedents, that is the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations. Case law uses the detailed facts of a legal case that have been resolved by courts or similar tribunals. These past decisions are called "case law", or precedent. Stare decisis—a Latin phrase meaning "let the decision stand"—is the principle by which judges are bound to such past decisions, drawing on established judicial authority to formulate their positions.

The Practice Statement [1966] 3 All ER 77 was a statement made in the House of Lords by Lord Gardiner LC on 26 July 1966 on behalf of himself and the Lords of Appeal in Ordinary, that they would depart from precedent in the Lords in order to achieve justice.

<i>Donoghue v Stevenson</i> 1932 UK leading case on negligence

Donoghue v Stevenson [1932] AC 562 was a landmark court decision in Scots delict law and English tort law by the House of Lords. It laid the foundation of the modern law of negligence in common law jurisdictions worldwide, as well as in Scotland, establishing general principles of the duty of care.

Landmark court decisions, in present-day common law legal systems, establish precedents that determine a significant new legal principle or concept, or otherwise substantially affect the interpretation of existing law. "Leading case" is commonly used in the United Kingdom and other Commonwealth jurisdictions instead of "landmark case", as used in the United States.

<i>Hedley Byrne & Co Ltd v Heller & Partners Ltd</i> English tort case on economic loss from negligent misstatements

Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 is an English tort law case on economic loss in English tort law resulting from a negligent misstatement. Prior to the decision, the notion that a party may owe another a duty of care for statements made in reliance had been rejected, with the only remedy for such losses being in contract law. The House of Lords overruled the previous position, in recognising liability for pure economic loss not arising from a contractual relationship, applying to commercial negligence the principle of "assumption of responsibility".

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), was a landmark U.S. Supreme Court decision in which the Court held that the United States does not have a general federal common law and that U.S. federal courts must apply state law, not federal law, to lawsuits between parties from different states that do not involve federal questions. In reaching this holding, the Court overturned almost a century of federal civil procedure case law, and established the foundation of the modern law of diversity jurisdiction.

Restitutio ad integrum, or restitutio in integrum, is a Latin term that means "restoration to original condition". It is one of the primary guiding principles behind the awarding of damages in common law negligence claims.

Judicial restraint is a judicial interpretation that recommends favoring the status quo in judicial activities and is the opposite of judicial activism. Aspects of judicial restraint include the principle of stare decisis ; a conservative approach to standing and a reluctance to grant certiorari; and a tendency to deliver narrowly tailored verdicts, avoiding "unnecessary resolution of broad questions."

<i>Rylands v Fletcher</i> Landmark House of Lords decision on tort law

Rylands v Fletcher (1868) LR 3 HL 330 is a leading decision by the House of Lords which established a new area of English tort law. It established the rule that one's non-natural use of their land, which leads to another's land being damaged as a result of dangerous things emanating from the land, is strictly liable.

<i>Anns v Merton LBC</i>

Anns v Merton London Borough Council[1977] UKHL 4, [1978] AC 728 was a decision of the House of Lords that established a broad test for determining the existence of a duty of care in the tort of negligence, called the Anns test or sometimes the two-stage test for true third-party negligence. The case was overruled by Murphy v Brentwood DC [1991].

Ex turpi causa non oritur actio is a legal doctrine which states that a plaintiff will be unable to pursue legal relief and damages if it arises in connection with their own tortious act. The corresponding Ex turpe causa non oritur damnum, "From a dishonourable cause, no damage arises" is a similar construction. Particularly relevant in the law of contract, tort and trusts, ex turpi causa is also known as the illegality defence, since a defendant may plead that even though, for instance, he broke a contract, conducted himself negligently or broke an equitable duty, nevertheless a claimant by reason of his own illegality cannot sue. The UK Supreme Court provided a thorough reconsideration of the doctrine in 2016 in Patel v Mirza.

<i>Re Polemis & Furness, Withy & Co Ltd</i> English legal case involving negligence

In RePolemis & Furness, Withy & Co Ltd (1921) is an English tort case on causation and remoteness in the law of negligence.

<i>Re Spectrum Plus Ltd</i>

Re Spectrum Plus Ltd[2005] UKHL 41 was a UK company law decision of House of Lords that settled a number of outstanding legal issues relating to floating charges and recharacterisation risk under the English common law. However, the House of Lords also discussed the power of the court to make rulings as to the law that were "prospective only" to mitigate potential harshness when issuing a ruling that was different from what the law had previously been understood to be.

<i>Gregg v Scott</i> 2005 English tort law case

Gregg v Scott [2005] UKHL 2 is an English tort law case, on the issue of loss of a chance, in causation. It affirms the principle of Hotson v East Berkshire Area Health Authority, on a narrow margin of 3 to 2. Lord Nicholls' dissent is of particular note, in arguing that loss of a chance should be actionable.

Wednesbury unreasonableness is a ground of judicial review in Singapore administrative law. A governmental decision that is Wednesbury-unreasonable may be quashed by the High Court. This type of unreasonableness of public body decisions was laid down in the English case of Associated Provincial Picture Houses v. Wednesbury Corporation (1947), where it was said that a public authority acts unreasonably when a decision it makes is "so absurd that no sensible person could ever dream that it lay within the powers of the authority".

<i>Jones v Kaney</i> 2011 UK Supreme Court judgment

Jones v Kaney [2011] UKSC 13 is a 2011 decision of the Supreme Court of the United Kingdom on whether expert witnesses retained by a party in litigation can be sued for professional negligence in England and Wales, or whether they have the benefit of immunity from suit. The case involved a psychologist (Kaney) instructed as an expert witness in a personal injury claim, who was said to have negligently signed a statement of matters agreed with the expert instructed by the opposing side, in which she made a number of concessions that weakened the claim considerably. As a result, according to the injured claimant (Jones), he had to settle the claim for much less than he would have obtained had his expert not been careless. To succeed in the claim, he had to overturn an earlier Court of Appeal decision that had decided that preparation of a joint statement with the other side's expert was covered by immunity from suit. Kaney therefore succeeded in getting the claim struck out before trial on an application heard by Mr Justice Blake in the High Court of Justice. The judge issued a certificate allowing the claimant to "leapfrog" the Court of Appeal and go straight to the Supreme Court to appeal against his decision.

In the English system of common law, judges have devised a number of mechanisms to allow them to cope with precedent decisions.

References

  1. ↑ Definition may vary between countries and over time
  2. ↑ Sidney Lee. Great Englishmen of the Sixteenth Century. Charles Scribner's Sons. New York. 1904. p 262
  3. ↑ "Juridical Society" (1860) 5 Solicitors' Journal & Reporter 52 at 53 (24 November 1860)
  4. ↑ Hanford v Artcher (1842) 4 Hill 271 at 324
  5. ↑ Edwin Bell, "Bad Law" (1913) 19 Case and Comment 600 Google Books
  6. ↑ Nairobi Law Monthly 1991 Google Books
  7. ↑ 1 Term Reports 153
  8. ↑ 1 Term Reports 5
  9. ↑ Andrews v Drever (1835) 3 Clark and Finnelly 314 at 334; (1835) 9 Bligh's New Reports 471 at 504.
  10. ↑ John W Chambers, "The Big Switch: Justice Roberts and the Minimum Wage Cases" (1969) 10 Labor History 44 at 66 and 67, read with page 58. Reprinted in Hall (ed), Judicial Review and Judicial Power in the Supreme Court. Garland Publishing, 2000. Routledge, 2013. Pages 24 and 25, read with page 16.
  11. ↑ Edwin Bell, "Bad Law" in "Arguments from Authority" (1913) 19 Case and Comment 599 at 600. Cf. Edwin Bell, The Principles of Argument, 1910, p 231.
  12. ↑ LR 13 App Cas 1, 57 LJ Prob NS 65, 58 LTNS 423, 36 Week Rep 870, 6 Asp Mar L Cas 257, 52 JP 212
  13. ↑ 8 CB 115
  14. ↑ Edwin Bell, "Bad Law" in "Arguments from Authority" (1913) 19 Case and Comment 599 at 600 and 601.
  15. ↑ Edwin Bell, "Bad Law" in "Arguments from Authority" (1913) 19 Case and Comment 599 at 601.
  16. ↑ Butler v Van Wyck (1841) 1 Hill 438 at 462
  17. ↑ (1892) 52 Minnesota Reports 59 at 66
  18. ↑ Walker Marshall, "Classification of Erroneous Decisions" in "Is a Judicial Tribunal, either of the Last Resort or otherwise, bound by the Principles laid down by itself on Previous Occasions?" (1860) 2 Papers Read Before the Juridical Society 331 at 335 and 336.
  19. ↑ Life of John, Lord Campbell. 1881. Volume 1. Page 215.
  20. ↑ Oldham, p 50
  21. ↑ Robert C Deal. The Law of the Whale Hunt. Cambridge University Press. 2016. Chapter 3. Laws of Honour. Temple University. 2010. Page 45.
  22. ↑ "Obiter Dicta" (1882) 17 The Law Journal 389 (22 July 1882)
  23. ↑ J H R, "Scenes in Court from the Year Books" (1894) 10 Law Quarterly Review 63 at 65
  24. ↑ Edwards v Bairstowe [1956] AC 14 at 36
This page is based on this Wikipedia article
Text is available under the CC BY-SA 4.0 license; additional terms may apply.
Images, videos and audio are available under their respective licenses.