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law mixes its metaphors quite graphically: the law reports are more
like a seamless web than a wilderness of single instances.
THE DISTORTING MIRROR: OVER-USE OF THE LAW REPORTS
It is easy to see why the law reports can be depicted as a rich
treasury of inter-related stories, arguments and decisions, extending
over time and space and many spheres of social life; public, concrete,
detailed, authentic and accessible. Common lawyers have
quite understandably cherished and loved the law reports; the
trouble is that they have too often loved them to distraction and
have become case-mad.
For the law reports have very distinct limitations and to use them
as the main route to understanding law, let alone social life, is to
become over-reliant on a kind of lens that distorts as much as it
illuminates. Let me just pick out a few points from a long litany.
First, the law reports are unrepresentative in several important
ways. Imagine, as if on a map, a total picture of all disputes and
conflicts in society. Only a minute percentage of these ever comes
near a lawyer or law enforcement official. Focus, for the sake of
argument, on civil claims on which a solicitor is consulted: the
vast majority of these will be settled or dropped without any formal
process of litigation being started; of the tiny number in which a
writ is issued or formal proceedings are begun, nearly all will be
settled out of court. Of those cases which reach court, it is most
commonly the facts that are mainly in dispute, or possibly disposition
or sentencing, rather than questions of law. In the relatively
small number in which the court of first instance has to determine
an issue of law, there is usually no appeal. By no means all appellate
cases involving a question of law reach the law reports—for
our system of law reporting is much more selective than in the
United States. 34 The statistics vary according to the subject-matter
and the type of proceeding—but in almost all spheres of litigation
reported cases are exceptional. At every stage, cases get filtered
out, by no means randomly: some litigants cannot afford to continue;
many disputes are not worth the costs, economic and otherwise,
of litigation; some repeat-players—insurance companies, for
example—will settle, rather than provide courts with an opportunity
to create an unwelcome precedent. And so on.
Some of the main reasons for treating the law reports with caution
were summarised well by Sir Otto Kahn-Freund:
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