Isn&#39;t the rule of precedent inherently flawed in the adversarial system? In the adversarial system, who wins in a court proceeding basically depends on how the parties present and argue their cases. That is, the same facts and evidence could yield diametrically opposite results depending on who the parties were, how determined they were to win, how prepared they were, how quickly they think, in what mood or state of health they were in etc. etc. (Who the judge was is also a big factor, but this is true in the inquisitorial system too.) Yet court decisions become precedents that lower courts are bound by. That is, if a someone lost a case merely because they did not come up with an argument which, should they have come up with, would convince the judge to rule in their favour, and that case has become a precedent, the fate of any following cases in lower courts with comparable facts will be decided by that unluckily slow-thinking litigant/lawyer. How is that considered coherent / just / fair? Isn't the rule of precedent inherently flawed in the adversarial system? (I accept this question has a flavour of politics and hence may belong to Politics.SE).
Short Answer The concern raised is a real one, but it is much less serious than one might naively expect. Long Answer Precedents Apply Only To Resolve The Legal Arguments Presented On The Facts Found To Exist At Trial A Bad Lawyer's Failure To Develop Facts At Trial Isn't A Serious Problem A precedent determines the law as applied to a particular set of facts found by the trial court and confirmed as properly in the trial court record by the appellate court, as to a particular legal issue. Failure to prove facts at trial due to the fault of counsel for a party in the trial court changes the scope of the precedent. Failure to establish facts in one case that sets a precedent, doesn't prevent a similarly situated party, in a case with essentially the same actual facts, from doing a better job and thus presenting a set of facts that are not governed by the same precedent. The precedent from the ill argued case would not apply because the facts as found by the trial court would be different. A Bad Lawyer's Failure To Present Legal Arguments Isn't A Serious Problem if a someone lost a case merely because they did not come up with an argument which, should they have come up with, would convince the judge to rule in their favour, and that case has become a precedent, the fate of any following cases in lower courts with comparable facts will be decided by that unluckily slow-thinking litigant/lawyer. Likewise, suppose that due to incompetence of counsel, a key legal argument isn't made. When a trial court lawyer makes that mistake, the precedent will merely resolve the legal arguments that were resolved by the trial court. This won't preclude a future litigant from making different legal arguments that are stronger in the same circumstances since the precedent won't resolve those legal arguments. For example, suppose that a trial, a lawyer for one side fails to argue that the statute of frauds (which requires certain contracts to be in writing) bars the claim, and the judgment in favor of other other side on an oral agreement is upheld on appeal. A lawyer in a new case with the same facts can move to dismiss the other side's claim based upon the statute of frauds, because the precedent upholding the oral agreement didn't resolve the question of whether the statute of frauds could be used to dismiss the claim arising under that agreement. There Aren't Better Alternatives To Sift Through Legal Arguments No lawyer can make every argument. The incentives of the system and the professional regulation of lawyers, however, increases the likelihood that the strongest arguments will be made to the court setting the precedent and in the trial court before an appellate court considers the issue, relative to pretty much any other means of clarifying ambiguous issues in the law, where the advocates for different legal rules usually don't have the same strong incentives to argue their cases as well as they possibly can. The Risk Posed By Ineffectual Rhetoric In Favor Of Good Rules Of Law Is Real But Limited This doesn't mean that bad lawyering doesn't give rise to bad precedents. But when this happens it is usually because for a given argument and set of facts, the lawyer for one side is so much more rhetorically effective in making a legal argument than the lawyer for the other side which is proposing a &quot;better rule&quot; of law. But the exclusion of people who can't finish law school and pass the bar exam from the process makes a truly decisive advantage for one party over another in rhetorical effectiveness fairly rare. To the extent that rhetorical failure in appellate briefing is the cause of a bad precedent, the long term systemic effect of this problem (some would call it a feature of the system rather than a flaw) is that the side with more resources that can afford to hire better lawyers will tend to produce legal results that favor similarly situated parties going forward. Thus, it produces a sort of diluted &quot;natural selection&quot; effect (a bias that is equally, if not more concerning, in the duel of lobbyists for all sides of an issue in the legislative process). The other safeguards discussed below, limit this risk, although not completely. Other Safeguards Subject-Matter Jurisdiction The requirement of an actual &quot;case and controversy&quot; for subject-matter jurisdiction, and the requirement of &quot;standing&quot; for subject-matter jurisdiction are designed to prevent someone from intentionally making straw man arguments on appeal that produce precedents that are bad law. Thoughtful Appellate Judges When Opinions Are Published Also, appellate court precedents are made by a panel of multiple (usually three at the first direct appeal level) experienced and esteemed judges who are acutely aware that the decisions that they are making in precedent setting cases influence the law in other cases which causes them to look beyond the arguments of the parties to resolve the dispute. It isn't at all uncommon in such cases for an appellate court to resolve a case on appeal on the basis of arguments not made by either party in their briefs, or precedents or statutes not mentioned by either party. Furthermore, most appellate court decisions are unpublished opinions that expressly determined by the panel making the decision not to make a binding precedent, which allows panels of judges in these cases to take less care to run afoul of the risk of making a bad decision due to bad lawyering by a party. So, in the minority of cases that are published and create binding precedents, judges are especially careful to consider this risk. Five More Safeguards The other main safeguards in the case law system against bad precedents due to poor lawyering by a party are: (1) the ability of uninvolved third-parties to file amicus briefs in connection with an appeal presenting perspectives on legal issues not presented by a party, (2) the ability of a state supreme court or the U.S. Supreme Court (or both) as the case may be, to overrule intermediate appellate court precedents that were wrongly decided, (3) the ability of legislatures to change non-constitutional legal rulings by statute, (4) the procedural requirement that the relevant state or federal attorney general be given notice and an opportunity to intervene in cases challenging the constitutionality of a law, and (5) the ability of the political process to amend the relevant constitution to address a bad binding precedent by a highest court on a constitutional issue that the legislature cannot fix. Collectively These Safeguards Help Somewhat None of these safeguards are fool proof. But, collectively, these safeguards reduce the risk of a bad precedent being established due to bad lawyering in an adversary system, that the inherent limitation of a precedent being limited to particular facts and particular legal arguments provides as a primary means of preventing. Other Causes Of Bad Precedents Are More Of A Problem In general, once all of the considerations above are taken together, the risk of a bad precedent being made due to bad lawyering, while it is real, is significantly smaller than the risk that a bad precedent will be made because the appellate judges rendering the precedent making opinion are bad judges. Bad judges usually end up as judges with appellate precedent making power because they were selected more based upon political considerations, as they are in many states, and in the federal system, rather than primarily based upon the soundness of their legal judgment. When one risk factor that can lead to a bad decision is much larger than another risk factor that can lead to a bad decision, further improvements in the smaller risk factor will rarely make all that much of a difference in the overall likelihood that the system will produce a bad precedent. So, the adversary system, is, on balance, good enough make the risk of bad precedents arising from bad lawyering a not very troubling problem with the system, even though it is a real risk that sometimes does produce bad precedents.
Theft is universally a crime in virtually every jurisdiction. Insofar as a state has a criminal code and a functioning judiciary, theft will always be a crime. It is also a basic legal principle that theft is a tort as well (in other words, a civil wrong incurring damages to an individual that can be remedied in a court of law). A key part of the problem in failing to make theft a crime, is that in the absence of a substantive penalty in terms of a fine or imprisonment, theft becomes a low-risk, high-reward activity where the maximum penalty is simply the repayment of stolen goods (with relatively minimal loss). This fails to provide an effective deterrent to this socially frowned-upon activity, and rates of crime would skyrocket. It is appropriate, therefore, to make theft a crime (and all jurisdictions do so), as all pillars of criminal justice immediately apply. Edit: As @/JBentley correctly points out, penalties do in fact exist in civil law. That said, the power of incarceration, perhaps in this case the ultimate deterrent, is largely unavailable in civil cases. The ultimate point - that theft is rendered a more sound and legitimate enterprise based largely on gambling - remains the same. Additionally, not all individuals have the time or effort to file small claims and follow cases to the end. Making theft a tort-only offense would cause extraordinary difficulties in enforcement as many would consider the loss of perhaps a small article relatively insignificant compared to filing in small claims court.
Given that both parties have committed criminal offenses (the 'bad actor' is attempting fraud and the 'victim' has committed unauthorized access to a computer system), no court would hear a civil case between these parties. As a matter of public policy, criminals do not owe a duty of care to each other so no one can win this case.
Only if counsel challenged the point during the trial Difficult as it might be, you can’t allow the judge to be wrong during the trial without calling them on it: very, very politely. For example, there is case law that says you can’t successfully appeal because the judge was asleep through significant parts of the trial; appeals courts are clear that you have to wake them up. If you don’t then you accepted that you didn’t want the judge to hear the parts of the case they slept through, it’s your choice how you present your case. Frankly some cases are better if the judge misses half the evidence. Of course, if the error of law makes it through to the oral or written judgement then you can appeal even if you didn’t take issue with it.
Acrimony Mowzer makes some good points. Another one is the parties may just hate each other. In some strands of legal theory, it's considered a type of transaction cost that keeps people from bargaining before and after litigation.
Decisions that break with precedent do happen with some regularity, but far &quot;from all the time&quot; in the US. When they do happen, they are generally only at the top level of a state or federal court system, that is a State supreme Court (or equivalent, some states use a different term) or the US Supreme Court. There are several factors which discourage judges from simply ignoring precedent. First of all, all the training a lawyer receives teaches him or her to respect precedent, and to find rules by examining past cases. precedent is literally the stuff with which a lawyer works, rather more than the wording of statutes (although those are also important). Secondly, as a lawyer works as a litigator, judges will usually ground their decisions on precedents, particularly in appellate cases, explaining their decisions largely in terms of how they conform to or extend precedents. Thirdly, if a lower court judge fails to follow precedent, that judge will often be criticized by an appellate judge or justice, often in the course of an opinion overturning the lower-court judge's ruling. This does not feel pleasant to such a judge. Fourthly, decision that fail to follow precedent are often (although not always) criticized by legal scholars, particularly in law review articles and treatises. Fifthly, lower-court judges who often fail to follow precedents, are less likely to be recommended by senior judges for promotion to appellate positions. However, the actual appointments are controlled by politicians (in most cases) not other judges, so this factor may not be as strong it it would first seem. Only once a judge gets to the level of the Supreme Court of a state, or the Federal Supreme Court, is that judge (now a Justice) expected to alter precedents as needed, and most justices have said that they make such changes only reluctantly. I am not aware of any US state or federal statute or regulation that specifically;y requires judges to follow precedent. The most common way to alter precedent is not to overrule or ignore it, but to distinguish a prior case. This happens when a judge says something like: In the previous case of A v B when had situation X which lead to outcome Q. But in this current case we have the very different situation X1. In the case of X1, the outcome should be S instead of Q. If the new case becomes persuasive the old case A v B may apply to only one specific set of facts that almost never comes up, and the new rule apply to almost all other possible situations. The old case may cease to be cited or applied without ever being formally overruled. And, of course, where the rule is statutory, it may be changed if the legislature alters the law. If the rule is constitutional, it may be changed by a constitutional amendment. For example the 1830s case Barron v Baltimore held that the US bill of rights did not apply to the states, only to the Federal Government. But after the 1868 14th amendment, courts started to incorporate much of the bill of rights into the Due process clause of the 14th, and apply it against the states. This took place gradually, mostly during the period starting with 1898, up until about 1970, but with some incorporation coming as late as 2010 (Heller)
The decision of a court consists of several things: The orders made A summary of the evidence The judge's reasoning from the evidence to their conclusions of what the facts of the case are The judge's reasoning from the evidence to their conclusions of what the law applying to those facts is The judge's reasoning from those findings of facts and law to the orders that were made (ratio decidendi) Reasoning on how things might have been decided otherwise (or the same way) if the facts or the law were different (obiter dicta). We hope that the judge is articulate enough that we can tell which is which. Where there is more than one judge there is more than one opinion. However, there is still ratio decidendi and obiter dicta across all the opinions. Typically, a dissenting judge disagrees with the ratio decidendi in whole or part and his reasoning about that is obiter dicta. The ratio decidendi – "the point in a case that determines the judgement" or "the principle that the case establishes" – creates binding precedent. The obiter dicta creates persuasive precedent. A binding precedent is just that – it binds the decisions of lower ranked courts in the hierarchy. If the facts of the current case match the facts of the precedent then the judge must follow the precedent even if they disagree with it – indeed there are many decisions where the judge expresses their disagreement with the precedent in no uncertain terms. In addition, there can be conflicting precedent, for example, where the High Court of Australia has made a decision on a piece of legislation that conflicts with a decision of the Supreme Court of NSW on an essentially similar provision in a different Act. A wise judge in such a situation should do what McDougal J did in Chase Oyster Bar v Hamo Industries [2010] NSWCA 190 and issue orders referring it to a court that can overturn one (or both) of the precedents. A persuasive precedent can influence the decisions of other courts – they are an authority a judge can look to in formulating their reasons but they are free to consider and reject them even if the facts match. Obiter dicta from same level or higher courts in the hierarchy is persuasive precedent as is ratio decidendi and obiter dicta from same level courts and courts in other jurisdictions.
It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question.