What a case actually decides: reading law before you apply
What a case actually decides: reading law before you apply
Law students spend a first term learning to separate the part of a judgment that binds later courts from the part that does not. The case of the snail in the ginger beer bottle shows why that distinction is the whole subject, and it can be practised long before an offer arrives.
The case with no snail
In August 1928 a woman called May Donoghue drank a bottle of ginger beer in the Wellmeadow Cafe in Paisley. A friend had bought it for her. Partway down, on her account, the remains of a decomposed snail floated out of the opaque bottle and she became ill. She sued the manufacturer, David Stevenson. Four years later the House of Lords found for her by three votes to two, and Donoghue v Stevenson became the case every common law student meets in the first term of a law degree. The snail was never proved to exist.
There was no trial on the facts. Stevenson's lawyers took a different route, arguing that even if every word Mrs Donoghue said was true she had no claim at all, because she had bought nothing and had a contract with nobody. That turned the dispute into a question of law on its own. Assuming the facts, does a manufacturer owe any duty to the person who eventually drinks the product? Lord Atkin's answer, that you must take reasonable care to avoid acts or omissions you can reasonably foresee would injure your neighbour, is the foundation of the modern law of negligence in England, Scotland and much of the Commonwealth. Stevenson died before the case could go back for trial and it was settled with his executors. Whether there was ever a snail in that bottle is still unknown.
Which words actually bind
A judgment is a long piece of prose and only some of it is law. The reasoning that was necessary to decide the case in front of the court, the ratio decidendi, binds the courts below. Everything else is obiter dictum. Asides and hypotheticals about disputes that were not before the court carry no binding force, though a good line can be quoted admiringly for a century.
Donoghue makes the distinction sharp. Read narrowly, the case holds that a manufacturer who sends out a drink in a sealed opaque container owes a duty to whoever ends up drinking it. Read as the neighbour principle, it holds something much larger about when any of us owes care to any of the rest of us. Courts spent the following fifty years arguing about which reading was the binding one, stretching the principle through the 1970s and hauling it back in during the 1990s. A student who knows only that Mrs Donoghue won knows nothing about the case.
Losing arguments have a long life
Dissents are the other thing beginners skip. In Liversidge v Anderson in 1942 the House of Lords looked at a wartime regulation that let the Home Secretary detain anyone he had reasonable cause to believe was of hostile associations. Four judges held that the words meant whatever the minister honestly thought they meant. Lord Atkin dissented alone, and wrote that he viewed with apprehension judges who showed themselves "more executive minded than the executive". He was treated as an embarrassment. His dissent is now the orthodox view and the majority reasoning is filed away as a wartime aberration. Part of what a law degree trains you to do is read the losing judgment as carefully as the winning one, because losing judgments are sometimes just early.
A method for reading one
Take a recent Supreme Court decision and work through it in a fixed order. Start with the court and the judge giving the leading judgment. Then find the question the court was actually asked, which is almost always narrower than the version that reached the newspapers. Facts come next, and the ones that matter are those agreed or assumed rather than proved. Somewhere in the middle the reasoning turns, usually in a single paragraph out of eighty. Last, look for what the court expressly declined to decide, because judgments say so in terms and students skim past it.
The material is free. The UK Supreme Court publishes a press summary alongside every judgment and films its hearings, so you can watch counsel being interrupted mid-sentence and then read what the court made of the argument three months later. BAILII holds full-text decisions going back decades. Neither asks for a subscription or a teacher.
What this has to do with an application
Law is not on the timetable at most schools, so admissions tutors cannot test what you have covered. They test how you handle material you have never seen. The LNAT essay hands you a proposition and forty minutes and marks whether your argument survives its own counterexamples. An Oxford law interview is likely to give you an invented statute and a set of facts built to sit awkwardly at its edges. Case recall earns nothing in either exercise. They are looking for a candidate who has spent a few months noticing that a rule and the application of a rule are different things.
Two or three judgments read properly will take you further than a shelf of introductions. Our Resources page lists the places to start, including BAILII, the Supreme Court's own site, the UK Human Rights Blog and the Secret Barrister. The same discipline in a different subject sits in our note on reading a source like an examiner, and on why historians disagree.
