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Case Law

case law — Refinements in the interpretation of law as established by rulings in courts of appeal.

Case law is what happens after a statute has been passed. No matter how carefully worded the written law may be, there are going to be ambiguities in it. There are going to be a lot of special circumstances and implications that the Legislature never considered when making the law. There will also be conflicts between laws, where one law tells you to do one thing and another tells you something else. Case law—or the actual application of the law upon appeal—helps resolve these ambiguities and differences.

Let's say that, in response to complaints, some governing body passes a law: "Skateboarding in the park is prohibited." Seems pretty straightforward, right? Wrong! Some people are going to get really pissed about this law, like skateboarding interest groups and skateboard manufacturers, and eventually some rebellious young skateboard dude says, "Hell no! This is my park, I'm gonna skateboard all I want!" He is arrested, and then something magical happens.

Lawyers get involved.

The lawyers do what lawyers do, which is pick apart the statute word-by-word. How do you define "skateboarding"? How do you define "park"? If someone skateboards on the sidewalk on the edge of the park, does this violate the law? Does the law cover motorized skateboards, skateboarding dogs, roller skates, wheeled suitcases, baby strollers? Is the intent of the skateboarder an essential element of the crime? Is there a component of racial, sexual or age discrimination in the statute?

Most importantly: Does the law violate the client's Constitutionally-protected God-given rights to freedom of expression, freedom of religion, right to privacy and right to keep and bear arms?

Any lawyer worth his salt (and given unlimited funding) is going to find appealable issues. After the skateboard dude is convicted in a local court, the case may be appealed to some higher court. This is where case law is made. The appeals court is going to uphold or overturn the original ruling. (It can also return the case to the original court for further consideration, or it can refuse to consider the case at all.) At the same time, it may issue a written opinion which henceforth will be known as City v. Dude.

What is carried to appeal is not the whole case but some specific issue in the application of the law. Maybe the Dude was arrested on the sidewalk on the edge of the park. In that case, the issue might be whether the sidewalk actually constitutes a part of the park. City v. Dude may eventually come to symbolize and define a certain property issue, much like Roe v. Wade has defined the issue of abortion. The case can then be used as an analogy in future court cases, even if they aren't appealed. A lawyer can stand before a judge and say, "City v. Dude clearly indicates that blah, blah, blah, blah."

After the appeals, City v. Dude may eventually be regarded as a watershed ruling that changes everything in the way "skatingboarding" and "parks" are perceived under the law. The only problem is, by that time the Dude himself may be dead... OF OLD AGE!

Honestly, although case law is an essential element of our legal system, it usually isn't something that you want to personally get involved in. Frankly, unless you're on Death Row, you should run like hell from any lawyer who suggests an appeal. Lawyers love appeals, of course, because the billable hours are huge and making case law is sexy, but given these incentives, maybe they aren't really representing your best interests. Apart from costing tens of thousands of dollars, even millions sometimes, appeals can put your life on hold for months or years. Appeals can be especially destructive in Family Court cases where the lives of children are held hostage.

Yes, I know there is a principle involved. There always is. I know you want justice to be served, but there are other things more important than justice. Please don't forget how short life is. Maybe this isn't the perfect settlement. Maybe the bitch or bastard is getting away with murder, but Ladies and Gentlemen, listen to me, please!

Let's move on.

[12/29/05]


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