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y the now proscribed conduct.
1. The Importance of Precedent
In a common law system, judges are obliged to make their rulings as consistent as
reasonably possible with previous judicial decisions on the same subject. The
Constitution accepted most of the English common law as the starting point for
American law. Situations still arise that involve rules laid down in cases decided
more than 200 years ago. Each case decided by a common law court becomes a
precedent, or guideline, for subsequent decisions involving similar disputes. These
decisions are not binding on the legislature, which can pass laws to overrule
unpopular court decisions. Unless these laws are determined to be unconstitutional
by the Supreme Court, they preempt the common law precedent cases. Judges
deciding cases are bound by the new law, rather than the precedent cases.
To better understand how the common law works, assume that there is a hypothetical
drug, Zoneout, that is a psychoactive drug with some medical uses but a high
potential for abuse: It is addictive and users lose their interest in going to work.
If Congress writes the statute regulating Zoneout very clearly and specifically—a
complete ban on prescribing or using Zoneout—then the court’s role is limited; if the
physician prescribes Zoneout, then the physician has violated the statute and is guilty
of a crime. All the cases involving prescriptions for Zoneout will look the same and
the law will not evolve. But assume the statute is vague: no prescriptions for
dangerous drugs. Then the court will have to decide under which circumstances
Zoneout is a dangerous drug and when it is permissible to use it.
Assume that the court decides that Zoneout is a dangerous drug for treating
workplace stress. That decision is then published and made available to the public.
When the next case of a prescription for Zoneout comes before the court, the judge
would be expected to follow the previous decision (the precedent) or to explain why
it did not apply. The next case involves a Zoneout prescription for a patient with
severe anxiety secondary to cancer treatment. The judge rules that Zoneout is not a
dangerous drug under these facts because the risk of addiction is outweighed by the
benefits of suppressing the anxiety. As more judicial opinions are written on
prescribing Zoneout, it will become clearer when it is legal to use it and when it is
prohibited. These opinions are the common law precedent on the prescription of
Zoneout. They tell a physician when it is permissible to use Zoneout.
The value of a common law system is that the law can be adapted to situations that
were not contemplated by the legislature. There are two disadvantages. First, judges
must follow the precedent cases. If they do not, then it is impossible to predict what
the law is. The second is that with hundreds of cases being decided every day, it is
hard to keep up with the relevant decision. It is not unusual for several courts to be
deciding cases on the same subject at the same time, with no good way to coordinate
their opinions. Frequently the courts will reach different conclusions about the law.
The state court in San Francisco might ban the use of Zoneout in the workplace, but
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