Precedent

In common law legal systems, a precedent or authority is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases." Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and regulatory law (regulations promulgated by executive branch agencies).

Case law or common law is the set of decisions of adjudicatory tribunals that can be cited as precedent. In most countries, including most European countries, the term is applied to any set of rulings on law which is guided by previous rulings, for example, previous decisions of a government agency - that is, precedential case law can arise from either a judicial ruling or a ruling of an adjudication within an executive branch agency. Trials and hearings that do not result in written decisions of a court of record do not create precedent for future court decisions.

Principle

Stare decisis (Anglo-Latin pronunciation: /ˈstɛəriː dˈsaɪss/) is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed." In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters. The principle of stare decisis can be divided into two components.

The first is the rule that a decision made by a superior court, or by the same court in an earlier decision, is binding precedent that the court itself and all its inferior courts are obligated to follow. The second is the principle that a court should not overturn its own precedent unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one that courts can and do ignore occasionally.

Case law in common law systems

In the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying precedent which record how and why prior cases have been decided. Unlike most civil law systems, common law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in similar cases, and all lower courts should make decisions consistent with previous decisions of higher courts. For example, in England, the High Court and the Court of Appeal are each bound by their own previous decisions, but the Supreme Court of the United Kingdom is able to deviate from its earlier decisions, although in practice it rarely does so.

Generally speaking, higher courts do not have direct oversight over lower courts, in that they cannot reach out on their own initiative (sua sponte) at any time to reverse or overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent and the case is not appealed, the decision will stand.

A lower court may not rule against a binding precedent, even if the lower court feels that the precedent is unjust; the lower court may only express the hope that a higher court or the legislature will reform the rule in question. If the court believes that developments or trends in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, the court may either hold that the precedent is inconsistent with subsequent authority, or that the precedent should be distinguished by some material difference between the facts of the cases. If that judgment goes to appeal, the appellate court will have the opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by setting a new precedent of higher authority. This may happen several times as the case works its way through successive appeals. Lord Denning, first of the High Court of Justice, later of the Court of Appeal, provided a famous example of this evolutionary process in his development of the concept of estoppel starting in the High Trees case: Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130.

Judges may refer to various types of persuasive authority to reach a decision in a case. Widely cited non-binding sources include legal encyclopedias such as Corpus Juris Secundum and Halsbury's Laws of England, or the published work of the Law Commission or the American Law Institute. Some bodies are given statutory powers to issue Guidance with persuasive authority or similar statutory effect, such as the Highway Code.

In federal or multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved and it may be necessary to distinguish how the law is applied in one district, province, division or appellate department. Usually only an appeal accepted by the court of last resort will resolve such differences and, for many reasons, such appeals are often not granted.

Any court may seek to distinguish its present case from that of a binding precedent, in order to reach a different conclusion. The validity of such a distinction may or may not be accepted on appeal. An appellate court may also propound an entirely new and different analysis from that of junior courts, and may or may not be bound by its own previous decisions, or in any case may distinguish the decisions based on significant differences in the facts applicable to each case. Or, a court may view the matter before it as one of "first impression," not governed by any controlling precedent.

Where there are several members of a court, there may be one or more judgments given; only the ratio decidendi of the majority can constitute a binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in argument. Quite apart from the rules of precedent, the weight actually given to any reported judgment may depend on the reputation of both the court and the judges.

Type of precedent

Verticality

Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. The inferior courts conduct almost all trial proceedings. The inferior courts are bound to obey precedent established by the appellate court for their jurisdiction, and all supreme court precedent.

The Supreme Court of California's explanation of this principle is that

[u]nder the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of courts exercising superior jurisdiction. Otherwise, the doctrine of stare decisis makes no sense. The decisions of this court are binding upon and must be followed by all the state courts of California. Decisions of every division of the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt to overrule decisions of a higher court.

An Intermediate state appellate court is generally bound to follow the decisions of the highest court of that state.

The application of the doctrine of stare decisis from a superior court to an inferior court is sometimes called vertical stare decisis.

Horizontality

The idea that a judge is bound by (or at least should respect) decisions of earlier judges of similar or coordinate level is called horizontal stare decisis.

In the United States federal court system, the intermediate appellate courts are divided into "circuits". Each panel of judges on the court of appeals for a circuit is bound to obey the prior appellate decisions of the same circuit. Precedent of a United States court of appeals may be overruled only by the court en banc, that is, a session of all the active appellate judges of the circuit, or by the United States Supreme Court, not simply by a different three-judge panel.

When a court binds itself, this application of the doctrine of precedent is sometimes called horizontal stare decisis. The state of New York has a similar appellate structure as it is divided into four appellate departments supervised by the final New York Court of Appeals. Decisions of one appellate department are not binding upon another, and in some cases the departments differ considerably on interpretations of law.

Federalism and parallel state and federal courts

In federal systems the division between federal and state law may result in complex interactions. In the United States, state courts are not considered inferior to federal courts but rather constitute a parallel court system. State courts must follow decisions of the federal courts on issues of federal law, and federal courts must follow decisions of the state courts on issues of state law.

If an issue of state law arises during a case in federal court, and there is no decision on point from the highest court of the state, the federal court must either attempt to predict how the state courts would resolve the issue by looking at decisions from state appellate courts, or, if allowed by the constitution of the relevant state, submit the question to the state's courts.

While state courts must follow decisions of the United States Supreme Court on issues of federal law, federal courts must follow decisions of the courts of each state on issues of that state's law. If there is no decision on point from the highest court of a state, the federal courts must either attempt to predict how the state courts would resolve the issue, by looking at decisions from state appellate courts at all levels, or, if allowed by the constitutions of the relevant states, consult the state supreme courts. Decisions of the lower federal courts (i.e. the federal circuit courts and district courts) are not binding on any state courts, meaning that interpretations of certain federal statutes can and occasionally have diverged depending upon whether the forum is state or federal.

In practice, however, judges in one system will almost always choose to follow relevant case law in the other system to prevent divergent results and to minimize forum shopping.

Binding precedent

Precedent that must be applied or followed is known as binding precedent (alternately metaphorically precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. In state and federal courts in the United States of America, jurisdiction is often divided geographically among local trial courts, several of which fall under the territory of a regional appeals court. All appellate courts fall under a highest court (sometimes but not always called a "supreme court"). By definition, decisions of lower courts are not binding on courts higher in the system, nor are appeals court decisions binding on local courts that fall under a different appeals court. Further, courts must follow their own proclamations of law made earlier on other cases, and honor rulings made by other courts in disputes among the parties before them pertaining to the same pattern of facts or events, unless they have a strong reason to change these rulings (see Law of the case re: a court's previous holding being binding precedent for that court).

In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts under common law legal systems. In English law it is usually created by the decision of a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the House of Lords in 2009. In Civil law and pluralist systems precedent is not binding but case law is taken into account by the courts.

Binding precedent relies on the legal principle of stare decisis. Stare decisis means to stand by things decided. It ensures certainty and consistency in the application of law. Existing binding precedent from past cases are applied in principle to new situations by analogy.

One law professor has described mandatory precedent as follows:

Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the question resolved in the precedent case is the same as the question to be resolved in the pending case, (2) resolution of that question was necessary to the disposition of the precedent case; (3) the significant facts of the precedent case are also presented in the pending case, and (4) no additional facts appear in the pending case that might be treated as significant.

In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent.

Under the U.S. legal system, courts are set up in a hierarchy. At the top of the federal or national system is the Supreme Court, and underneath are lower federal courts. The state court systems have hierarchy structures similar to that of the federal system.

The U.S. Supreme Court has final authority on questions about the meaning of federal law, including the U.S. Constitution. For example, when the Supreme Court says that the First Amendment applies in a specific way to suits for slander, then every court is bound by that precedent in its interpretation of the First Amendment as it applies to suits for slander. If a lower court judge disagrees with a higher court precedent on what the First Amendment should mean, the lower court judge must rule according to the binding precedent. Until the higher court changes the ruling (or the law itself is changed), the binding precedent is authoritative on the meaning of the law.

Although state courts are not part of the federal system, they are also bound by U.S. Supreme Court rulings on federal law. State courts are not generally bound by Federal District courts or Circuit courts, however. A federal court interpreting state law is bound by prior decisions of the state supreme court.

Lower courts are bound by the precedent set by higher courts within their region. Thus, a federal district court that falls within the geographic boundaries of the Third Circuit Court of Appeals is bound by rulings of the Third Circuit Court, but not by rulings in the Ninth Circuit, since the Circuit Courts of Appeals have jurisdiction defined by geography. The Circuit Courts of Appeals can interpret the law how they want, so long as there is no binding Supreme Court precedent. One of the common reasons the Supreme Court grants certiorari (that is, they agree to hear a case) is if there is a conflict among the circuit courts as to the meaning of a federal law.

There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs to be accepted, and an efficient system of law reporting. 'A balance must be struck between the need on one side for the legal certainty resulting from the binding effect of previous decisions, and on the other side the avoidance of undue restriction on the proper development of the law (1966 Practice Statement (Judicial Precedent) by Lord Gardiner L.C.)'.

Binding precedent in English law

Judges are bound by the law of binding precedent in England and Wales and other common law jurisdictions. This is a distinctive feature of the English legal system. In Scotland and many countries throughout the world, particularly in mainland Europe, civil law means that judges take case law into account in a similar way, but are not obliged to do so and are required to consider the precedent in terms of principle. Their fellow judges' decisions may be persuasive but are not binding. Under the English legal system, judges are not necessarily entitled to make their own decisions about the development or interpretations of the law. They may be bound by a decision reached in a previous case. Two facts are crucial to determining whether a precedent is binding:

1. The position in the court hierarchy of the court which decided the precedent, relative to the position in the court trying the current case.
2. Whether the facts of the current case come within the scope of the principle of law in previous decisions.

Super stare decisis

Super-stare decisis is a term used for important precedent that is resistant or immune from being overturned, without regard to whether correctly decided in the first place. It may be viewed as one extreme in a range of precedential power, or alternatively, to express a belief, or a critique of that belief, that some decisions should not be overturned.

In 1976, Richard Posner and William Landes coined the term "super-precedent," in an article they wrote about testing theories of precedent by counting citations. Posner and Landes used this term to describe the influential effect of a cited decision. The term "super-precedent" later became associated with different issue: the difficulty of overturning a decision. In 1992, Rutgers professor Earl Maltz criticized the Supreme Court's decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on an issue of major national importance (as in Roe v. Wade), that side can protect its position from being reversed "by a kind of super-stare decisis." The controversial idea that some decisions are virtually immune from being overturned, regardless of whether they were decided correctly in the first place, is the idea to which the term "super stare decisis" now usually refers.

The concept of super-stare decisis (or "super-precedent") was mentioned during the interrogations of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Prior to the commencement of the Roberts hearings, the chair of that committee, Senator Arlen Specter of Pennsylvania, wrote an op/ed in the New York Times referring to Roe as a "super-precedent." He revisited this concept during the hearings, but neither Roberts nor Alito endorsed the term or the concept.

Persuasive precedent

Persuasive precedent (also persuasive authority) is precedent or other legal writing that is not binding precedent but that is useful or relevant and that may guide the judge in making the decision in a current case. Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts, indigenous/tribal courts, state courts versus federal courts in the United States), statements made in dicta, treatises or academic law reviews, and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies, etc.

In a "case of first impression", courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through its adoption by a higher court.

In civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by the courts.

Lower courts

A lower court's opinion may be considered as persuasive authority if the judge believes they have applied the correct legal principle and reasoning.

Higher courts in other circuits

A court may consider the ruling of a higher court that is not binding. For example, a district court in the United States First Circuit could consider a ruling made by the United States Court of Appeals for the Ninth Circuit as persuasive authority.

Horizontal courts

Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an appellate court for one district could consider a ruling issued by an appeals court in another district.

Statements made in obiter dicta

Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not binding, will often be persuasive to lower courts. The phrase obiter dicta is usually translated as "other things said", but due to the high number of judges and individual concurring opinions, it is often hard to distinguish from the ratio decidendi (reason for the decision). For these reasons, the obiter dicta may often be taken into consideration by a court. A litigant may also consider obiter dicta if a court has previously signaled that a particular legal argument is weak and may even warrant sanctions if repeated.

Dissenting opinions

A case decided by a multi-judge panel could result in a split decision. While only the majority opinion is considered precedential, an outvoted judge can still publish a dissenting opinion. Common patterns for dissenting opinions include:

• an explanation of how the outcome of the case might be different on slightly different facts, in an attempt to limit the holding of the majority
• planting seeds for a future overruling of the majority opinion

A judge in a subsequent case, particularly in a different jurisdiction, could find the dissenting judge's reasoning persuasive. In the jurisdiction of the original decision, however, a judge should only overturn the holding of a court lower or equivalent in the hierarchy. A district court, for example, could not rely on a Supreme Court dissent as a basis to depart from the reasoning of the majority opinion. However, lower courts occasionally cite dissents, either for either a limiting principle on the majority, or for propositions that are not stated in the majority opinion and not inconsistent with that majority, or to explain a disagreement with the majority and to urge reform (while following the majority in the outcome).

Treatises, restatements, law review articles

Courts may consider the writings of eminent legal scholars in treatises, restatements of the law, and law reviews. The extent to which judges find these types of writings persuasive will vary widely with elements such as the reputation of the author and the relevance of the argument.

Courts in other jurisdictions

Although not considered binding law, the courts of England and Wales are free to decide what particular judgement or judgements from other countries can be considered or deemed so highly persuasive or so persuasive that they may also be taken into consideration alongside binding domestic English case law.

Since the late 20th century, the concept of a U.S. court considering foreign law or precedent has been considered controversial by some parties. The Supreme Court splits on this issue. In Atkins v. Virginia, for example, the majority cited as part of their reasoning the fact that the European Union forbids the death penalty. But, Chief Justice Rehnquist opposed the "Court's decision to place weight on foreign laws." The House of Representatives passed a nonbinding resolution criticizing the citing of foreign law and "reaffirming American independence." This critique is recent, as in the early history of the United States, citation of English authority was ubiquitous. One of the first acts of many of the new state legislatures was to adopt the body of English common law into the law of the state. See here. Citation to English cases was common through the 19th and well into the 20th centuries. Even in the late 20th and early 21st centuries, it is relatively uncontroversial for American state courts to rely on English decisions for matters of pure common (i.e. judge-made) law.

Within the federal legal systems of several common-law countries, and most especially the United States, it is relatively common for the distinct lower-level judicial systems (e.g. state courts in the United States and Australia, provincial courts in Canada) to regard the decisions of other jurisdictions within the same country as persuasive precedent. Particularly in the United States, the adoption of a legal doctrine by a large number of other state judiciaries is regarded as highly persuasive evidence that such doctrine is preferred. A good example is the adoption in Tennessee of comparative negligence (replacing contributory negligence as a complete bar to recovery) by the 1992 Tennessee Supreme Court decision McIntyre v. Balentine (by this point all US jurisdictions save Tennessee, five other states, and the District of Columbia had adopted comparative negligence schemes). Moreover, in American law, the Erie doctrine requires federal courts sitting in diversity actions to apply state substantive law, but in a manner consistent with how the court believes the state's highest court would rule in that case. Since such decisions are not binding on state courts, but are often very well-reasoned and useful, state courts cite federal interpretations of state law fairly often as persuasive precedent, although it is also fairly common for a state high court to reject a federal court's interpretation of its jurisprudence.

Matter of first impression

First impression (known as primae impressionis in Latin) is a legal case in which there is no binding authority on the matter presented. Such a case can set forth a completely original issue of law for decision by the courts. A first impression case may be a first impression in only a particular jurisdiction. In that situation, courts will look to holdings of other jurisdictions for persuasive authority.

In the latter meaning, the case in question cannot be decided through referring to and/or relying on precedent. Since the legal issue under consideration has never been decided by an appeals court and, therefore, there is no precedent for the court to follow, the court uses analogies from prior rulings by appeals courts, refers to commentaries and articles by legal scholars, and applies its own logic. In cases of first impression, the trial judge will often ask both sides' attorneys for legal briefs.

In some situations, a case of first impression may exist in a jurisdiction until a reported appellate court decision is rendered.

Notable invocations

In the 2009 confirmation hearings of Sonia Sotomayor for the United States Supreme Court, Senator Jon Kyl, argued that the New Haven, Connecticut firefighter case that Sotomayor and her appeals court colleagues dismissed was a "case of first impression" so Sotomayor might not have been following precedent, as she has argued.

In United States v. LaFleur, 971 F.2nd 200, the Ninth Circuit was confronted with the issue of whether or not "duress" is a valid defense to murder under 18 U.S.C, 1111(a), such as that mitigates murder to manslaughter. The court declared, "This is an issue of first impression, and our review is de novo."

Contrasting role of case law in common law, civil law, and mixed systems

The different roles of case law in civil law and common law traditions create differences in the way that courts render decisions. Common law courts generally explain in detail the legal rationale behind their decisions, with citations of both legislation and previous relevant judgments, and often an exegesis of the wider legal principles. The necessary analysis, called ratio decidendi, then constitutes a precedent binding on other courts; further analyses not strictly necessary to the determination of the current case are called obiter dicta, which constitute persuasive authority but are not technically binding. By contrast, decisions in civil law jurisdictions are generally very short, referring only to statutes. The reason for this difference is that these civil law jurisdictions adhere to a tradition that the reader should be able to deduce the logic from the decision and the statutes, so that, in some cases, it is somewhat difficult to apply previous decisions to the facts presented in future cases.

Some pluralist systems, such as Scots law in Scotland and so-called civil law jurisdictions in Quebec and Louisiana, do not precisely fit into the dual "common-civil" law system classifications. Such systems may have been heavily influenced by the Anglo-American common law tradition; however, their substantive law is firmly rooted in the civil law tradition. Because of their position between the two main systems of law, these types of legal systems are sometimes referred to as "mixed" systems of law.

Law professors in common law traditions play a much smaller role in developing case law than professors in civil law traditions. Because court decisions in civil law traditions are brief and not amenable to establishing precedent, much of the exposition of the law in civil law traditions is done by academics rather than by judges; this is called doctrine and may be published in treatises or in journals such as Recueil Dalloz in France. Historically, common law courts relied little on legal scholarship; thus, at the turn of the twentieth century, it was very rare to see an academic writer quoted in a legal decision (except perhaps for the academic writings of prominent judges such as Coke and Blackstone). Today academic writers are often cited in legal argument and decisions as persuasive authority; often, they are cited when judges are attempting to implement reasoning that other courts have not yet adopted, or when the judge believes the academic's restatement of the law is more compelling than can be found in precedent. Thus common law systems are adopting one of the approaches long common in civil law jurisdictions.

Critical analysis of precedent

Court formulations

Justice Louis Brandeis, in a heavily-footnoted dissent to Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-411 (1932), explained (citations and quotations omitted):

Stare decisis is not ... a universal, inexorable command. "The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided." Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. ... In cases involving the Federal Constitution the position of this Court is unlike that of the highest court of England, where the policy of stare decisis was formulated and is strictly applied to all classes of cases. Parliament is free to correct any judicial error; and the remedy may be promptly invoked.

The reasons why this Court should refuse to follow an earlier constitutional decision which it deems erroneous are particularly strong where the question presented is one of applying, as distinguished from what may accurately be called interpreting, the Constitution. In the cases which now come before us there is seldom any dispute as to the interpretation of any provision. The controversy is usually over the application to existing conditions of some well-recognized constitutional limitation. This is strikingly true of cases under the due process clause when the question is whether a statute is unreasonable, arbitrary or capricious; of cases under the equal protection clause when the question is whether there is any reasonable basis for the classification made by a statute; and of cases under the commerce clause when the question is whether an admitted burden laid by a statute upon interstate commerce is so substantial as to be deemed direct. ...

The United States Court of Appeals for the Third Circuit has stated:

A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.

The United States Court of Appeals for the Ninth Circuit has stated:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

Justice McHugh of the High Court of Australia in relation to precedents remarked in Perre v Apand:

[T]hat is the way of the common law, the judges preferring to go 'from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point, and avoiding the dangers of the open sea of system or science.'

Academic study

Precedent viewed against passing time can serve to establish trends, thus indicating the next logical step in evolving interpretations of the law. For instance, if immigration has become more and more restricted under the law, then the next legal decision on that subject may serve to restrict it further still. The existence of submerged precedent (reasoned opinions not made available through conventional legal research sources) has been identified as a potentially distorting force in the evolution of law.

Scholars have recently attempted to apply network theory to precedent in order to establish which precedent is most important or authoritative, and how the court's interpretations and priorities have changed over time.

Application

Development

Early English common law did not have or require the stare decisis doctrine for a range of legal and technological reasons:

• During the formative period of the common law, the royal courts constituted only one among many fora in which in the English could settle their disputes. The royal courts operated alongside and in competition with ecclesiastic, manorial, urban, mercantile, and local courts.
• Royal courts were not organised into a hierarchy, instead different royal courts (exchequer, common pleas, king's bench, and chancery) were in competition with each other.
• Substantial law on almost all matters was neither legislated nor codified, eliminating the need for courts to interpret legislation.
• Common law's main distinctive features and focus were not substantial law, which was customary law, but procedural.
• The practice of citing previous cases was not to find binding legal rules but as evidence of custom.
• Customary law was not a rational and consistent body of rules and does not require a system of binding precedent.
• Before the printing press, the state of the written records of cases rendered the stare decisis doctrine utterly impracticable.

These features changed over time, opening the door to the doctrine of stare decisis:

By the end of the eighteenth century, the common law courts had absorbed most of the business of their nonroyal competitors, although there was still internal competition among the different common law courts themselves. During the nineteenth century, legal reform movements in both England and the United States brought this to an end as well by merging the various common law courts into a unified system of courts with a formal hierarchical structure. This and the advent of reliable private case reporters made adherence to the doctrine of stare decisis practical and the practice soon evolved of holding judges to be bound by the decisions of courts of superior or equal status in their jurisdiction.

United States legal system

Stare decisis applies to the holding of a case, rather than to obiter dicta ("things said by the way"). As the United States Supreme Court has put it: "dicta may be followed if sufficiently persuasive but are not binding."

In the United States Supreme Court, the principle of stare decisis is most flexible in constitutional cases:

Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. ... But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. ... This is strikingly true of cases under the due process clause.

— Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932) (Brandeis, J., dissenting).

For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases. The U.S. Supreme Court has further explained as follows:

[W]hen convinced of former error, this Court has never felt constrained to follow precedent. In constitutional questions, where correction depends upon amendment, and not upon legislative action, this Court throughout its history has freely exercised its power to reexamine the basis of its constitutional decisions.

— Smith v. Allwright, 321 U.S. 649, 665 (1944).

The United States Supreme Court has stated that where a court gives multiple reasons for a given result, each alternative reason that is "explicitly" labeled by the court as an "independent" ground for the decision is not treated as "simply a dictum."

Publication, non-publication and depublication

Main article: Non-publication of legal opinions in the United States

Non-publication of opinions, or unpublished opinions, are those decisions of courts that are not available for citation as precedent because the judges making the opinion deem the case as having less precedential value. Selective publication is the legal process which a judge or justices of a court decide whether a decision is to be or not published in a reporter. "Unpublished" federal appellate decisions are published in the Federal Appendix. Depublication is the power of a court to make a previously published order or opinion unpublished.

English legal system

The doctrine of binding precedent or stare decisis is basic to the English legal system, as described in the rest of this article. Special features of the English legal system include the following:

Last resort and strict stare decisis in the House of Lords and UK Supreme Court

The British House of Lords, as the court of last appeal outside Scotland before the creation of the UK Supreme Court, was not strictly bound to always follow its own decisions until the case London Street Tramways v London County Council [1898] AC 375. After this case, once the Lords had given a ruling on a point of law, the matter was closed unless and until Parliament made a change by statute. This is the most strict form of the doctrine of stare decisis (one not applied, previously, in common law jurisdictions, where there was somewhat greater flexibility for a court of last resort to review its own precedent).

This situation changed, however, after the issuance of the Practice Statement of 1966. It enabled the House of Lords to adapt English law to meet changing social conditions. In R v G & R 2003, the House of Lords overruled its decision in Caldwell 1981, which had allowed the Lords to establish mens rea ("guilty mind") by measuring a defendant's conduct against that of a "reasonable person," regardless of the defendant's actual state of mind.

However, the Practice Statement has been seldom applied by the House of Lords, usually only as a last resort. As of 2005, the House of Lords has rejected its past decisions no more than 20 times. They are reluctant to use it because they fear to introduce uncertainty into the law. In particular, the Practice Statement stated that the Lords would be especially reluctant to overrule themselves in criminal cases because of the importance of certainty of that law. The first case involving criminal law to be overruled with the Practice Statement was Anderton v Ryan (1985), which was overruled by R v Shivpuri (1986), two decades after the Practice Statement. Remarkably, the precedent overruled had been made only a year before, but it had been criticised by several academic lawyers. As a result, Lord Bridge stated he was "undeterred by the consideration that the decision in Anderton v Ryan was so recent. The Practice Statement is an effective abandonment of our pretention to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better." Still, the House of Lords has remained reluctant to overrule itself in some cases; in R v Kansal (2002), the majority of House members adopted the opinion that R v Lambert had been wrongly decided and agreed to depart from their earlier decision.

Distinguishing precedent on legal (rather than fact) grounds

A precedent does not bind a court if it finds there was a lack of care in the original "Per Incuriam". For example, if a statutory provision or precedent had not been brought to the previous court's attention before its decision, the precedent would not be binding.

Rules of Statutory Interpretation

Main article: Statutory interpretation

Statutory Interpretation in the U.K.

Judges and barristers in the U.K use three primary rules for interpreting the law. The normal aids that a judge has include access to all previous cases in which a precedent has been set, and a good English dictionary.

Under the literal rule, the judge should do what the actual legislation states rather than trying to do what the judge thinks that it means. The judge should use the plain everyday ordinary meaning of the words, even if this produces an unjust or undesirable outcome. A good example of problems with this method is R v Maginnis (1987) [1] in which several judges in separate opinions found several different dictionary meanings of the word "supply." Another example might be Fisher v Bell, where it was held that a shopkeeper who placed an illegal item in a shop window with a price tag did not make an offer to sell it, because of the specific meaning of "offer for sale" in contract law. As a result of this case, Parliament amended the statute concerned to end this discrepancy.

The golden rule is used when use of the literal rule would obviously create an absurd result. The court must find genuine difficulties before it declines to use the literal rule. There are two ways in which the Golden Rule can be applied: the narrow method, and the broad method. Under the narrow method, when there are apparently two contradictory meanings to a word used in a legislative provision or it is ambiguous, the least absurd is to be used. For example, in Adler v George (1964), the defendant was found guilty under the Official Secrets Act of 1920. The act said it was an offence to obstruct HM Forces in the vicinity of a prohibited place. Mr. Adler argued that he was not in the vicinity of a prohibited place but was actually in a prohibited place. The court chose not to accept the wording literally. Under the broad method, the court may reinterpret the law at will when it is clear that there is only one way to read the statute. This occurred in Re Sigsworth (1935) where a man who murdered his mother was forbidden from inheriting her estate, despite a statute to the contrary.

The mischief rule is the most flexible of the interpretation methods. Stemming from Heydon's Case (1584), it allows the court to enforce what the statute is intended to remedy rather than what the words actually say. For example, in Corkery v Carpenter (1950), a man was found guilty of being drunk in charge of a carriage, although in fact he only had a bicycle.

Statutory Interpretation in the United States

In the United States, the courts have stated consistently that the text of the statute is read as it is written, using the ordinary meaning of the words of the statute.

• "[I]n interpreting a statute a court should always turn to one cardinal canon before all others. ... [C]ourts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "[w]hen the words of a statute are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' "
• "A fundamental rule of statutory construction requires that every part of a statute be presumed to have some effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va. 332, 149 S.E. 541 (1929).
• "In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory definition or judicial construction, they are to be construed in accordance with their common usage." Muller v. BP Exploration (Alaska) Inc., 923 P.2d 783, 787–88 (Alaska 1996);

Practical application

Although inferior courts are bound in theory by superior court precedent, in practice a judge may believe that justice requires an outcome at some variance with precedent, and may distinguish the facts of the individual case on reasoning that does not appear in the binding precedent. On appeal, the appellate court may either adopt the new reasoning, or reverse on the basis of precedent. On the other hand, if the losing party does not appeal (typically because of the cost of the appeal), the lower court decision may remain in effect, at least as to the individual parties.

Judicial resistance

Occasionally, a lower court judge explicitly states personal disagreement with the judgment he or she has rendered, but that he or she is required to do so by binding precedent. Note that inferior courts cannot evade binding precedent of superior courts, but a court can depart from its own prior decisions.

Structural considerations

In the United States, stare decisis can interact in counterintuitive ways with the federal and state court systems. On an issue of federal law, a state court is not bound by an interpretation of federal law at the district or circuit level, but is bound by an interpretation by the United States Supreme Court. On an interpretation of state law, whether common law or statutory law, the federal courts are bound by the interpretation of a state court of last resort, and are required normally to defer to the precedent of intermediate state courts as well.

Courts may choose to obey precedent of international jurisdictions, but this is not an application of the doctrine of stare decisis, because foreign decisions are not binding. Rather, a foreign decision that is obeyed on the basis of the soundness of its reasoning will be called persuasive authority — indicating that its effect is limited to the persuasiveness of the reasons it provides.

Originalism

Originalism — the doctrine that holds that the meaning of a written text must be applied — is in tension with stare decisis, but is not necessarily opposed irrevocably. As noted above, "Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law"; Justice Antonin Scalia argues in A Matter of Interpretation that America is a civil law nation, not a common law nation. By principle, originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the Constitution. However, there is still room within an originalist paradigm for stare decisis; whenever the plain meaning of the text has alternative constructions, past precedent is generally considered a valid guide, with the qualifier being that it cannot change what the text actually says.

Some originalists may be even more extreme. In his confirmation hearings, Justice Clarence Thomas answered a question from Senator Strom Thurmond, qualifying his willingness to change precedent in this way:

I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case incorrect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case.

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Possibly he has changed his mind, or there are a very large body of cases which merit "the additional step" of ignoring the doctrine; according to Scalia, "Clarence Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let's get it right."

Professor Caleb Nelson, a former clerk for Justice Thomas and law professor at the University of Virginia, has elaborated on the role of stare decisis in originalist jurisprudence:

American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision. ...[T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedent that the current court deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter. But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law. ... Americans from the Founding on believed that court decisions could help "liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to abide by such "liquidations." ... To the extent that the underlying legal provision was determinate, however, courts were not thought to be similarly bound by precedent that misinterpreted it. ... Of the Court's current members, Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions. ... Prominent journalists and other commentators suggest that there is some contradiction between these Justices' mantra of "judicial restraint" and any systematic re-examination of precedent. But if one believes in the determinacy of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can also speak of fidelity to the texts themselves.

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Advantages and disadvantages

There are disadvantages and advantages of binding precedent, as noted by scholars and jurists.

Criticism of precedent

In a 1997 book, attorney Michael Trotter blamed over-reliance by American lawyers on binding and persuasive authority, rather than the merits of the case at hand, as a major factor behind the escalation of legal costs during the 20th century. He argued that courts should ban the citation of persuasive precedent from outside their jurisdiction, with two exceptions:

(1) cases where the foreign jurisdiction's law is the subject of the case, or

(2) instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions.

The disadvantages of stare decisis include its rigidity, the complexity of learning law, the differences between some cases may be very small and appear illogical, and the slow growth or incremental changes to the law that are in need of major overhaul.

An argument often used against the system is that it is undemocratic as it allows judges, which may or may not be elected, to make law.

Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedent until a result is obtained that is greatly different from the original understanding of the Constitution. Stare decisis is not mandated by the Constitution, and if it causes unconstitutional results then the historical evidence of original understanding can be re-examined. In this opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedent. See also the living tree doctrine.

Agreement with precedent

A counter-argument (in favor of the advantages of stare decisis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so. Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedent that the judge supported anyway, but ignoring it in order to change precedent with which the judge disagreed.

There is much discussion about the virtue of using stare decisis. Supporters of the system, such as minimalists, argue that obeying precedent makes decisions "predictable." For example, a business person can be reasonably assured of predicting a decision where the facts of his or her case are sufficiently similar to a case decided previously. This parallels the arguments against retroactive (ex post facto) laws banned by the U.S. Constitution.

Civil law systems

Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. However, the civil law system does have jurisprudence constante, which is similar to stare decisis and dictates that the Court's decision condone a cohesive and predictable result. In theory, inferior courts are generally not bound to precedent established by superior courts. In practice, the need for predictability means that inferior courts generally defer to precedent by superior courts. In a sense, the most superior courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d'État in France are recognized as being bodies of a quasi-legislative nature.

The doctrine of jurisprudence constante also influences how court decisions are structured. In general, court decisions of common law jurisdictions give a sufficient statement of rationale as to guide future courts. This occurs to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a precedent for future cases.

By contrast, court decisions in some civil law jurisdictions (most prominently France) tend to be extremely brief, mentioning only the relevant legislation and not going into great detail about how a decision was reached. This is the result of the theoretical view that the court is only interpreting the view of the legislature and that detailed exposition is unnecessary. Because of this, much more of the exposition of the law is done by academic jurists which provide the explanations that in common law nations would be provided by the judges themselves.

In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing. However, some courts (such as German courts) have less emphasis on the particular facts of the case than common law courts, but have more emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is.

The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate branch, and sometimes counted as separate from the civil law tradition. In Sweden, for instance, case law arguably plays a more important role than in some of the Continental civil law systems. The two highest courts, the Supreme Court (Högsta domstolen) and the Supreme Administrative Court (Högsta förvaltningsdomstolen), have the right to set precedent which is in practice (however not formally) binding on all future application of the law. Courts of appeal, both general courts (hovrätter) and administrative courts (kammarrätter) may also issue decisions that act as guides for the application of the law, but these decisions may be overturned by higher courts.

See also

• Law of Citations (Roman concept)
• Binding precedent
• Case citation
• Legal opinion
• Case of first impression
• Distinguish
• First impression
• Persuasive precedent
• Qiyas
• Question of fact
• Ratio decidendi
• Stare decisis
• Commanding precedent