LAW For Laypersons The theory of precedent, al though it is often controlling and requires a certain income in many cases, is a rather loose concept. Technically, if the facts of the previously decided case are slightly different from the facts of the new case, the outcome in the previous case need not be followed in the new case, because the cases are not really alike. Even if the facts are quite different, however, a court may still follow the previously decided case under the therory of precedent because the cases are analogous, even if their facts are not similar. In addition, although a previously decided case may appear to be a perfect precedent for a present case because of similar facts, a court may decide the present case differently because the older case was decided by the court of another jurisdiction or by a court inferior to the court making the present decision. The theory of precedent can be loosened even more in other cases. For example, suppose that you have a new controversy which if factually very similar to a pre viously decided case which was heard by the very same court to hear the present controversy. In short, the previously decided case seems like a perfect precedent which will require the court to decide the present case in a similar manner. Is there any way that a lawyer could logically argue that the previously decided case should not be followed? The use of the historical argu ment has been very effective in a situation when a lawyer finds an unfavorable precedent controlling I his case. The idea is that the older case must be viewed in its historical setting. Imagine that the case which acts as precedent is one hundred years old, and even though it is factually very similar with the present con troversy, the lawyer has looked into the historical setting out of which the old case arose. He may well be able to argue that certain factors i which made the decision acceptable in years gone by are no longer present. He may press upon the court that intervening events render the older decision out of keeping with modern legal development. This historical approach has often changed a judge's mind about the value of an old case as precedent and brought about growth or change in the law. The theory of precedent, that like cases should be decided alike, may be varied as a result of historical or sociological argu ments. Surely an earlier case should not control the outcome of a present case if that earlier case arose in a different historical setting or if the case is just contrary to the way that society acts. Lawyers have also argued against the application of precedent in cases in which economic considera tions call for a different outcome. Assume that you as a lawyer have a case of a consumer who has bought from a manufacturer a certain product which turns out to be defective. The manufacturer made no written warranty about the performance of the product but because the product does not do what it was manufactured to do. you want to sue the manufacturer for the product's defect. You reason that the product should certainly do what it was manufac tured to do. Unfortunately, you find that an earlier case with a consumer in a similar situation denied recovery against the manufacturer because no written warranty was made about the performance of the product. According to the theory of precedent, that like cases should be decided alike, your present-day consumer should also not be able to recover against the manufacturer since there was no written war rinty. An economic argument, how ever, might be used to convince a judge that the earlier precedent should not demand a similar outcome. For example, you might argue that the manufacturer, which gets a considerable profit on each product, can bear the loss of one of its products being defective every now and then more easily than a customer can bear that same loss. In fact, you might point out that if the manufacturer knows it must bear the loss for a defective product, it can protect itself by raising the cost of etch product just ? little so that it will make enough extra money in order to cover the risk of loss H will have for a defective product. In this manner, the risk of lots to the manufacturer is spread over all of the people buying the product rather than being placed just on the one consumer who happens to buy the defective product. Of course, the manufacturer could make an economic argument on this point as well. It might argue that the sale of this particular article is so competitive that it cannot raise the price on each article enough to compensate it for any loss that it might have to bear for a defective product. In addi tion, it might argue that it will be put out of business, and the product will no longer be manu factured if it must bear the loss for every defective product. In summary, an economic argu ment requires that lawyers and judges look at all the facts sur rounding a particular problem and take into account economic con siderations. If those economic con siderations are indeed valid and were not considered at the time the prior case was decided, the theory of precedent should, perhaps, not b