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Wednesday, July 13, 2016

Latin Legal Terms for Genealogists -- Part Five

In order to adequately research both English law and court decisions and its shared descendant, law and court decisions in the United States of America, it is important to understand the concept of stare decisis literally "to stand by the decision." A good introduction is found in the following:

Burns, Thomas, " The Doctrine of Stare Decisis" (1893). Historical Theses and Dissertations Collection. Paper 270.

The idea of using the decisions made in previous cases to guide judges in making subsequent decisions is completely ingrained in English and American judicial decisions. However, it takes a considerable effort for a law student to begin to understand how this doctrine of stare decisis actually works and most non-lawyers are completely unaware of the process.

Why should a genealogist, particularly one who has no interest in becoming a lawyer or judge or even going to court, understand how the law works in England and the United States? That is an interesting question. It is almost the case that if you have to ask that question then you will not understand or appreciate the importance of the answer. Understanding basic legal principles falls in the same category for genealogists as being able to read hand written documents and documents in languages other than English. Genealogists need a set of research tools that includes these and many other skills. Just as with languages other than the researcher's native language, genealogical research does not require spoken and written proficiency. Both will help, but neither is absolutely necessary. The same principle applies to learning about law, geography, maps, history and every other subject related to genealogical research. 

The decisions made in the English and American courts are based on "the law." The law in both countries is made up of written statutes passed by the legislative bodies and the cumulative decisions of judges in court decisions dating back into antiquity. The collective rulings of previous judges is called legal precedent. If one judge decides a certain case a certain way, then the next judge that has a similar case is "bound by precedent." Generally, this means that a judge has to rule consistently with the previous case decisions (i.e. case law). The judges are given some latitude in interpreting prior court decisions, but in situations where there is an abundance of case law (lots of decisions on similar cases) the courts (judges) must rule consistently. If a judge decides to make a ruling or decision and not follow the rulings in previous cases (precedent) then the case may be appealed to a higher court and ultimately to a state Supreme Court or even the Supreme Court of the United States in some very special cases.

Only certain court's rulings are considered as precedent in deciding future cases. These courts are collectively called "courts of record" meaning they write formal and sometimes extensive explanations for their rulings. Generally lower courts such as local justice courts, municipal courts and state trial courts are courts "not of record." The rulings of these "lower" courts do not become part of the case law used in determining future cases, but the judges who rule in these lower courts are just as bound by stare decisis as any of the other courts. 

The written decisions of the courts of record usually have references to the controlling cases (precedent) used in making their decisions. The process of arguing a case in court usually involves trying to get the judge to agree with the client's position in the case by citing cases that support the client's position. The opposing attorney will try to find cases that support an opposite conclusion. This process of presenting opposing arguments to the court is what is know as an adversarial system of justice. 

Over time, the law evolves very slowly. Judges are inherently conservative in the their rulings. Non-lawyers usually hear about court rulings when the judges make a decision that is innovative or fails to follow precedent. But in "real life" these types of decisions are very rare. If the law is going to change concerning a certain subject, the rulings of the judges usually make small incremental changes rather than dramatically re-writing the law. When a major change is announced, it is usually something most lawyers knew was inevitable based on the history of rulings in that type of case. 

Some genealogists are satisfied if they find one mention of their client in a law case. But usually, one pleading or ruling has involved many other court filings. In the end, you may be surprised to discover how many documents may be created in course of one lawsuit. 

Here are the previous posts in this series.

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