provision, or that two or more meanings were
legally correct.
It is therefore
necessary to identify the meaning or meanings that the court so declared as
well as the meanings that the court rejected.
Predicting Future Cases
While it is a good start to determine exactly the rule of law which the court laid
down in a case, our ultimate concern is not what the court actually said in the
case but what it might say in the future when the same issue or a related or
derived issue comes up. In predicting choice, therefore, we look forward to
when the point next arises and try to predict how the court will choose.
Needless to say, though, the actual decision that the court reached in the case
is essential information for the task of predicting. This can be illustrated with
two extremes. If a court makes a decision that is monstrously bad there is a
strong chance that sometime, perhaps soon, a later court will overturn or
distinguish this decision. If, on the other hand, the decision is eminently good,
the chances are high that it will not be overturned, or not overturned until well
into the future when changed social circumstances may make the rule in the
decision less apposite.
Making Common Law
A common law rule is made in two stages. First the court determines which
facts are material. Second, the court generalises each fact to form an element
of the new rule.
This means that when trying to predict how a court will respond when a
common law rule next comes before it the task is to consider the decision
made in each stage. Is the court likely to make a different finding in relation to
the material facts? Is the second court likely to formulate the elements in a
different way by generalising a material fact to a different degree?
Interpreting Law
In trying to predict how the court will respond to an issue on a future occasion
it is necessary to adapt and apply the relevant part of the model for forming
law:
(1)
Options. Identify all of the meanings of the ambiguous provision in the
case. In theory the court will have identified the ambiguity but this is frequently
not the case and in any event there can be different ways of framing the
ambiguity. The court may have failed to state the ambiguity at all, it may have
done it implicitly rather than explicitly, or it may have done the task
incompletely by omitting a possible meaning. Or the court has framed the
ambiguity in a particular way but there is another and better way of doing it. Or
the court may try to formulate the ambiguity and miss it by looking at the
wrong provision. This often occurs because words in a statute near and
 |
 |
 |