Bad law mayDefinition may vary between countries and over time be considered to include unsound interpretation of legal principles,Sidney Lee. Great Englishmen of the Sixteenth Century. Charles Scribner's Sons. New York. 1904. p 262 or a proposition of law that is erroneous, or an attempted statement of the law that is inaccurate, or non-law.
Case law The following may be considered bad law: A precedent that has been overruled A judicial decision that is no law at allHanford v Artcher (1842) 4 Hill 271 at 324 A judicial decision that was "wrongly decided"Edwin Bell, "Bad Law" (1913) 19 Case and Comment 600 Google Books A judicial decision that was made per incuriamNairobi Law Monthly 1991 Google Books
A case may be reckoned bad law for some years but never actually overruled. Fitzroy v Gwillim1 Term Reports 153 and Corbett v Poelnitz1 Term Reports 5 are examples of such cases.Andrews v Drever (1835) 3 Clark and Finnelly 314 at 334; (1835) 9 Bligh's New Reports 471 at 504.
The Roberts' Doctrine implied that the Supreme Court of the United States could follow a decision that was bad law in certain circumstances. This doctrine was established by the decision in West Coast Hotel Co. v. Parrish (1937), and abolished by the decision in Erie Railroad Co. v. Tompkins (1938).John W Chambers, "The Big Switch: Justice Roberts and the Minimum Wage Cases" (1969) 10 Labor History 44 at 66 and 67, read with page 58. Reprinted in Hall (ed), Judicial Review and Judicial Power in the Supreme Court. Garland Publishing, 2000. Routledge, 2013. Pages 24 and 25, read with page 16.
Wrongly decided Edwin Bell said: An advocate may have to argue that a decision which is a direct authority against him, although it has been accepted as law and followed in numerous cases, was wrongly decided and is what lawyers call "bad law", and should be overruled.Edwin Bell, "Bad Law" in "Arguments from Authority" (1913) 19 Case and Comment 599 at 600. Cf. Edwin Bell, The Principles of Argument, 1910, p 231.
The case of Mills v ArmstrongLR 13 App Cas 1, 57 LJ Prob NS 65, 58 LTNS 423, 36 Week Rep 870, 6 Asp Mar L Cas 257, 52 JP 212 is an instance in which a previous decision in Thorogood v Bryan8 CB 115 was overruled on the ground that the decision was opposed to principles of justice. In Thorogood v Bryan the personal representatives of a deceased person brought an action against the owner of an omnibus by which the deceased was run over and killed. The omnibus in which the deceased had been carried had set him down in the middle of the road, instead of drawing up to the curb; and before he could get out of the way he was run over by the defendant's omnibus, which was coming along at too rapid a pace to be able to pull up. Both drivers were found guilty of negligence, but it was held that the plaintiff was not entitled to recover, on the principle that a passenger identifies himself with the conveyance in which he is travelling, and if the driver is guilty of negligence, his fault is imputed to the passenger.Edwin Bell, "Bad Law" in "Arguments from Authority" (1913) 19 Case and Comment 599 at 600 and 601.
In Mills v Armstrong, a collision occurred between the steamship Bernina and the Steamship Bushire, the result of which was that Armstrong, the first engineer of the Bushire was drowned. The collision was caused by the negligence of those in charge of both ships, and the action was brought by the personal representatives of Armstrong against the owner of The Bernina to recover damages for his death. It was argued that the plaintiff could not recover on the principle laid down in Thorogood v Bryan. But it was held by the House of Lords that the case of Thorogood v Bryan was wrongly decided, and the principle of it was overruled.Edwin Bell, "Bad Law" in "Arguments from Authority" (1913) 19 Case and Comment 599 at 601.
Erroneous In Butler v Van Wyck (1841), Bronson J, dissenting, said:
In Bradshaw v Duluth Imperial Mill Co (1892), Mitchell J said:
In 1860, Walker Marshall said:
"Bad Ellenborough law" As to the suppression of the publication of bad law by law reporters: Lord Campbell said:
Lord Campbell's reference to bad law was a reference to wrongly decided cases.Oldham, p 50 Robert Deal said that because the "bad Ellenborough law" is no longer extant, it is not possible to be certain that it actually was bad.Robert C Deal. The Law of the Whale Hunt. Cambridge University Press. 2016. Chapter 3. Laws of Honour. Temple University. 2010. Page 45. The Law Journal said that Campbell's drawer for Lord Ellenborough's bad law was probably opened rather too arrogantly."Obiter Dicta" (1882) 17 The Law Journal 389 (22 July 1882)
The Law Quarterly Review said of the Year Book report at 30 & 31 Edw 1 Br Chr 30, i 506: "Brave reporter! This is better than surreptitiously keeping a drawer like Campbell for Ellenborough's bad law."J H R, "Scenes in Court from the Year Books" (1894) 10 Law Quarterly Review 63 at 65
Error of law In Edwards v Bairstowe (1956), Lord Radcliffe said "If the case contains anything ex facie which is bad law and which bears upon the determination, it is obviously erroneous in point of law."Edwards v Bairstowe AC 14 at 36
Bad logic Walker Marshall said that bad law is in many instances nothing else than bad logic."Juridical Society" (1860) 5 Solicitors' Journal & Reporter 52 at 53 (24 November 1860)
See also Good law Hard cases make bad law, a maxim Strange laws, those laws which are particularly bizarre Oppression Injustice
References James Oldham. "Bad law" in "The indispensibility of manuscript case notes to eighteenth-century barristers and judges". Musson and Stebbings (eds). Making Legal History. Cambridge University Press. 2012. Page 30 at pages 49 and 50.