Setting Precedents Without Making Norms?
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Springer Nature B.V. 2020
KATHARINA STEVENS*
SETTING PRECEDENTS WITHOUT MAKING NORMS?
(Accepted 31 March 2020) ABSTRACT. Some authors argue that the rule-of-law ideal gives judges a prima facie duty to provide a determinate formulation of the precedent’s general norm in all their precedent-opinions. I question that claim. I agree that judges have a duty to decide their cases based on reasons and that they should formulate these reasons in their opinions. I also agree that formulations of general norms should be the goal of common-law development and that judges have a duty to contribute to the realization of this goal. However, I argue that judges may sometimes do so better if they do not provide a determinate formulation of a general norm in their opinion. Often, judges may not feel confident that they are able to formulate a good general norm for their precedent decision, even if they believe that their decision is both correct and justifiable through argument. In this case, various reasons speak against providing a determinate formulation of a general norm, including rule-of-law reasons. I. INTRODUCTION
In Dillon v. Legg, an influential case in California’s common law, the court decided to set a precedent without providing determinate guidance for its application to later cases.1 To summarize the case, a child had been killed in a car accident. The accident was witnessed by the child’s sister and mother, who both made emotional distress claims. At the time, the common law had been slowly changing in favour of emotional injury claims. The use of the so-called ‘impact test’, according to which emotional injury can only be recognized if the defendant has (however slightly) made a physical impact on the claimant, had been relaxed. Courts now recognized emotional injury 1 Dillon v. Legg, 68 Cal. 2d 728, 441 P.2d 912, 69 Cal. Rptr. 72 (1968). In this case the development of the law of torts in California. For discussion, see, e.g. Charles Juster, ‘Negligent Infliction of Emotional Distress: Keeping Dillon in Bounds’, Washington and Lee L. Rev. 37(4) (1980): pp. 1235–1246.
KATHARINA STEVENS
claims if the claimant had been in the ‘zone of danger’, where they could have been physically impacted.2 In Dillon v. Legg, using the zone-of-danger rule would have led to recognition of the sister’s emotional distress, but not the mother’s, because the mother was close enough to witness everything vividly, but in no danger of being physically impacted. The court decided to break with precedent and recognize the mother’s emotional injury. The argument was that the case made it obvious that the zone-of-danger rule was arbitrary. The court rejected the zone-of-danger rule, but it refused to formulate, in its place, another rule, test or other form of determinate guidance for when claims for emotional injury should be recognized. While it declared that such awards would depend on whether the defendant could reasonably foresee the emotional injury, it did not provide determinate guidance as to what that meant in the context of
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