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 ...
Precedent
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(Redirected from Case law)
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."
[1] Common law precedent is a third kind of law, on equal footing with
statutory law (statutes and codes enacted by legislative bodies), and
Delegated legislation (in U.K. parlance) or
regulatory law (in U.S. parlance) (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.
Precedential (whether strongly binding or weakly persuasive) case law
can arise from a ruling by either a judicial court, or by an executive
branch agency. Trials and hearings that do not result in written
decisions, decisions from tribunals that are not in the "chain of
command" that binds the later court, written decisions that are
designated "nonprecedential" by the tribunal, or written decisions of
agencies that are not issued and indexed with sufficient formality to
gain precedential effect, and cases that are resolved without written
decision, do not create binding precedent for future court decisions.
[2]
Principle
Stare decisis (
Anglo-Latin pronunciation:
)
is a legal principle by which judges are obligated 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."
[3] In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters.
[3] 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.
[4]
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.
[5] 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 day-to-day proceedings in 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.
[6]
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.[7]
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 thirteen "circuits,"
each covering some range of territory ranging in size from the District
of Columbia alone up to seven states. Each panel of judges on the
court of appeals for a circuit is bound to obey the prior appellate decisions of the same circuit.
[citation needed] 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.
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.[8]
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.
[9][10] A federal court interpreting state law is bound by prior decisions of the state supreme court.
[11]
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:
- The position in the court hierarchy of the court which decided the
precedent, relative to the position in the court trying the current
case.
- 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,
[12] 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.
[13]
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.
[14] 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."
[15]
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.
[16]
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
[17] 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.
Persuasive effect of decisions from other jurisdictions
The courts of England and Wales are free to consider decisions of
other jurisdictions, and give them whatever persuasive weight the
English court sees fit, even though these other decisions are not
binding precedent. Jurisdictions that are closer to modern English
common law
are more likely to be given persuasive weight, for example Commonwealth
states (for example Canada, Australia, or New Zealand). Persuasive
weight might be given to other common law courts, such as from the
United States, most often where the American courts have been
particularly innovative, e.g. in
product liability and certain areas of
contract law.
In the United States, in the late 20th and early 21st centuries, 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."
[citation needed]
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.
Nonprecedential decisions: non-publication and depublication, noncitation rules
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.
Litigation
that is settled out of court generates no written decision, and thus
has no precedential effect. As one practical effect, the U.S. Department
of Justice settles many cases against the federal government simply to
avoid creating adverse precedent.
Res judicata, claim preclusion, collateral estoppel, issue preclusion, law of the case
Several rules may cause a decision to apply as narrow "precedent" to
preclude future legal positions of the specific parties to a case, even
if a decision is non-precedential with respect to all other parties.
Res judicata, claim preclusion
Main article:
res judicata
Once a case is decided, the same plaintiff cannot sue the same
defendant again on any claim arising out of the same facts. The law
requires plaintiffs to put all issues on the table in a single case, not
split the case. For example, in a case of an auto accident, the
plaintiff cannot sue first for property damage, and then personal injury
in a separate case. This is called
res judicata or
claim preclusion
("'Res judicata'" is the traditional name going back centuries; the
name shifted to "claim preclusion" in the United States over the late
20th century). Claim preclusion applies whether the plaintiff wins or
loses the earlier case, even if the later case raises a different legal
theory, even the second claim is unknown at the time of the first case.
Exceptions are extremely limited, for example if the two claims for
relief must necessarily be brought in different courts (for example, one
claim might be exclusively federal, and the other exclusively state).
collateral estoppel, issue preclusion
Once a case is finally decided, any issues decided in the previous
case may be binding against the party that lost the issue in later
cases, even in cases involving other parties. For example, if a first
case decides that a party was negligent, then other plaintiffs may rely
on that earlier determination in later cases, and need not re-prove the
issue of negligence. For another example, if a patent is shown to be
invalid in a case against one accused infringer, that same patent is
invalid against all other accused infringers—invalidity need not be
re-proved. Again, there are limits and exceptions on this principle. The
principle is called
collateral estoppel or
issue preclusion.
law of the case
Within a single case, once there's been a first appeal, both the
lower court and the appellate court itself will not further review the
same issue, and will not re-review an issue that could have been
appealed in the first appeal. Exceptions are limited to three
"exceptional circumstances:" (1) when substantially different evidence
is raised at a subsequent trial, (2) when the law changes after the
first appeal, for example by a decision of a higher court, or (3) when a
decision is clearly erroneous and would result in a manifest injustice.
This principle is called "
law of the case."
Splits, tensions
On many questions, reasonable people may differ. When two of those
people are judges, the tension among two lines of precedent may be
resolved as follows.
Jurisdictional splits: disagreements among different geographical regions or levels of federalism
If the two courts are in separate, parallel jurisdictions, there is
no conflict, and two lines of precedent may persist. Courts in one
jurisdiction are influenced by decisions in others, and notably better
rules may be adopted over time.
Splits among different areas of law
Courts try to formulate the common law as a "seamless web" so that
principles in one area of the law apply to other areas. However, this
principle does not apply uniformly. Thus, a word may have different
definitions in different areas of the law, or different rules may apply
so that a question has different answers in different legal contexts.
Judges try to minimize these conflicts, but they arise from time to
time, and under principles of 'stare decisis', may persist for some
time.
Conflicts
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.
[18]
In some situations, a case of first impression may exist in a jurisdiction until a reported
appellate court decision is rendered.
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.
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.
Mixed or bijuridical systems
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.
The role of academics in compiling and interpreting case law in civil law jurisdictions
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.[19]
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.[20]
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.
[21]
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.
[22]
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.[23]
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."
[24]
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).[25]
For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases.
[26] 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.
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."
[28]
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.
[citation needed]
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."
[29] 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
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.
[verification needed]
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.
[30]
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.
[31]
Note that inferior courts cannot evade binding precedent of superior
courts, but a court can depart from its own prior decisions.
[32]
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
[citation needed].
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.
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."
[34]
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.
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.[36]
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.
[citation needed]
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.
[citation needed]
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.
[citation needed]
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.
[37] Critics
[who?]
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.
[citation needed]
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.
[citation needed]
See also
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