The Duty to Disclose Adverse Precedents: The Spirit of the Common Law and Its Enemies

This Article compares common law jurisdictions’ legal reasoning and use of precedents with those of the Court of Justice of the European Union and the European Court of Human Rights, the two main supranational systems in Europe. These supranational European systems have adopted a judicial approach to the development of law that may resemble common law reasoning at first glance, as both the supranational European systems and common law jurisdictions develop law through decisions on particular cases brought before them. However, this Article shows that the common law’s precedent-bound reasoning is critically absent from the European supranational experience. Common law reasoning robustly contends with prior case law and incorporates that case law into it. That distinct precedent-bound reasoning is a not just a function of judicial philosophy. Rather, it is a collective enterprise, formed by the shared efforts of attorneys and judges to identify relevant precedents and make arguments based on them. That shared effort is notably absent in the supranational European systems. This Article contends that this difference between common law and European supranational jurisprudence is shown through the ethics codes for common law lawyers, which codify the expectation that law will be created through precedent-oriented thinking. European supranational courts, conversely, require no such disclosure and utilization of precedents. This paper compares the American ethics requirements, with some discussion of other common law countries, with the requirements in those European systems that lack any duty to disclose precedent. In doing so, it discusses the effect of this expectation on statutory and constitutional interpretation. The Article maintains that some of the legitimacy issues that the European systems face arise from those courts’ lack of attention to precedents. Like common law courts, the supranational European courts have developed European law; but they have done so by selecting only a portion of relevant case-law instead of incorporating the whole body of it into their reasoning. This selectivity stems from a different conception of legal reasoning and practice. Thus, what distinguishes the common law is the judicial framework within which the legal reasoning takes place, more so than the mere citation of precedent. It suggests that the European systems be more open to precedent-bound reasoning as a way to bolster legitimacy without compromising on ultimate aims.