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Case Law
Case law is an important source of law in all areas, even those heavily legislated.
Case law is a primary source of law.
Being able to identify, read and understand case law is integral to successful legal research.
Case law is a central component to understanding and interpreting the law of a common law jurisdiction.
It is law which has developed over time by judges in superior courts.
Each case or judgment delivered by superior courts is used to solve disputes between parties.
Once a judgment is delivered it becomes precedent that future disputes will be settled based upon.
Precedent is one of the core principles underpinning case law.,br>It is based upon the hierarchy of courts which gives hierarchy in authority to judgments delivered by those courts.
Decisions made in superior (higher) courts form precedents which inferior (lower) courts are bound to follow.
This is called the doctrine of precedent, or stare decisis.
Summary of the research process
The following research pathway will take you through the process of finding out about case law.
- Read about the area of law, including commentary, that puts the case in context, using tools such as legal dictionaries, encyclopaedias, text books and journal articles:
- Find commentary about the general topic you are looking at by consulting books and encyclopaedias.
Within the commentary you will find references to relevant primary materials (cases and legislation) in the text and in the footnotes. - Consult legal dictionaries to clarify the legal meaning of unfamiliar words, or familiar words used in an unusual manner.
- Examine judicial consideration of cases (where a case has been considered in other cases), using case citators such as the Digest and CaseBase.
- Find commentary about the general topic you are looking at by consulting books and encyclopaedias.
- Examine the status of the decision:
- Is the precedent in the decision still good law?
When you have found and read a relevant case you will need to establish its current standing. - How has the decision been applied in more recent decisions?
New developments in case law can occur whenever a case is decided (the decision is "handed down").
This means that when you have found and read relevant cases you then need to find out how the decision has been applied in more recent decisions. - Other terminology used in relation to this task: "noting up cases", "status" or "standing".
- Is the precedent in the decision still good law?
- Finally you may wish to read more journal articles discussing the particular point of law, case or legislation.
Reported cases and unreported judgments
When a decision is handed down, it is in an unreported format, i.e. it has not been selected to go into any of the report series.
In senior courts such as the High Court of Australia most decisions will end up in an authorised (officially sanctioned) report series such as the Commonwealth Law Reports (CLR), as well from the Federal Court and High Court.