Precedent
Encyclopedia
In common law
legal systems
, a precedent or authority is a principle or rule established in a legal case
that a court
or other judicial body may apply when deciding subsequent cases with similar issues or fact
s. 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."
In other words precedent can be defined as "an already decided decision which furnishes the basis for later cases involving similar facts and issues."
, 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).
One law professor has described mandatory precedent as follows:
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 United States 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.
(or persuasive authority or advisory precedent). 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), 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 jurisdiction
s that have previously dealt with similar issues. Persuasive precedent may become binding through its adoption by a higher court.
has stated:
The United States Court of Appeals for the Ninth Circuit
has stated:
Justice McHugh
of the High Court of Australia
in relation to precedence remarked in Perre v Apand:
Scholars have recently attempted to apply network theory
to precedents in order to establish which precedents are most important or authoritative, and how the court's interpretations and priorities have changed over time.
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 issue was raised again in the questioning of Chief Justice John G. Roberts and Justice Samuel Alito
during their confirmation hearings before the Senate Judiciary Committee. Before the hearings the chair of the committee, Senator Arlen Specter
of Pennsylvania, wrote an op/ed in the New York Times referring to Roe as a "super-precedent." He mentioned the concept (and made seemingly humorous references to "super-duper precedent") during the hearings, but neither Roberts nor Alito endorsed the term or the concept.
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
legal systems
Legal systems of the world
The legal systems of the world today are generally based on one of three basic systems: civil law, common law, and religious law – or combinations of these...
, a precedent or authority is a principle or rule established in a legal case
Legal case
A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. A legal case may be either civil or criminal...
that a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
or other judicial body may apply when deciding subsequent cases with similar issues or fact
Fact
A fact is something that has really occurred or is actually the case. The usual test for a statement of fact is verifiability, that is whether it can be shown to correspond to experience. Standard reference works are often used to check facts...
s. 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."
In other words precedent can be defined as "an already decided decision which furnishes the basis for later cases involving similar facts and issues."
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 decisisStare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
, a lower court
Lower court
A lower court is a court from which an appeal may be taken. In relation to an appeal from one court to another, the lower court is the court whose decision is being reviewed, which may be the original trial court or an appellate court lower in rank than the superior court which is hearing the...
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
Law of the case
The Law of the case is a legal term of art that is applicable mainly in common law, or Anglo-American, jurisdictions that recognize the related doctrine of stare decisis. The phrase refers to instances where "rulings made by a trial court and not challenged on appeal become the law of the case." ...
re: a court's previous holding being binding precedent for that court).
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 present 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
Distinguish
In law, to distinguish a case means to contrast the facts of the case before the court from the facts of a case of precedent where there is an apparent similarity. By successfully distinguishing a case, the holding or legal reasoning of the earlier case will either not apply or will be limited...
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 United States 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
Certiorari
Certiorari is a type of writ seeking judicial review, recognized in U.S., Roman, English, Philippine, and other law. Certiorari is the present passive infinitive of the Latin certiorare...
(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.
Persuasive precedent
Precedent that is not mandatory but which is useful or relevant is known as persuasive precedentPersuasive precedent
Persuasive precedent is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, persuasive authority may guide the judge in making the decision in the instant case...
(or persuasive authority or advisory precedent). 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), 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 jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s that have previously dealt with similar issues. Persuasive precedent may become binding through its adoption by a higher court.
Court formulations
The United States Court of Appeals for the Third CircuitUnited States Court of Appeals for the Third Circuit
The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the district courts for the following districts:* District of Delaware* District of New Jersey...
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
United States Court of Appeals for the Ninth Circuit
The United States Court of Appeals for the Ninth Circuit is a U.S. federal court with appellate jurisdiction over the district courts in the following districts:* District of Alaska* District of Arizona...
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
Michael McHugh
Michael Hudson McHugh, AC, QC is a former justice of the High Court of Australia; the highest court in the Australian court hierarchy.-Judicial Activity:...
of the High Court of Australia
High Court of Australia
The High Court of Australia is the supreme court in the Australian court hierarchy and the final court of appeal in Australia. It has both original and appellate jurisdiction, has the power of judicial review over laws passed by the Parliament of Australia and the parliaments of the States, and...
in relation to precedence 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
Precedents 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.Scholars have recently attempted to apply network theory
Network theory
Network theory is an area of computer science and network science and part of graph theory. It has application in many disciplines including statistical physics, particle physics, computer science, biology, economics, operations research, and sociology...
to precedents in order to establish which precedents are most important or authoritative, and how the court's interpretations and priorities have changed over time.
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
Richard Posner
Richard Allen Posner is an American jurist, legal theorist, and economist who is currently a judge on the United States Court of Appeals for the Seventh Circuit in Chicago and a Senior Lecturer at the University of Chicago Law School...
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
Planned Parenthood v. Casey
Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 was a case decided by the Supreme Court of the United States in which the constitutionality of several Pennsylvania state regulations regarding abortion were challenged...
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
Roe v. Wade
Roe v. Wade, , was a controversial landmark decision by the United States Supreme Court on the issue of abortion. The Court decided that a right to privacy under the due process clause in the Fourteenth Amendment to the United States Constitution extends to a woman's decision to have an abortion,...
), that side can protect its position from being reversed "by a kind of super-stare decisis."
The issue was raised again in the questioning of Chief Justice John G. Roberts and Justice Samuel Alito
Samuel Alito
Samuel Anthony Alito, Jr. is an Associate Justice of the U.S. Supreme Court. He was nominated by President George W. Bush and has served on the court since January 31, 2006....
during their confirmation hearings before the Senate Judiciary Committee. Before the hearings the chair of the committee, Senator Arlen Specter
Arlen Specter
Arlen Specter is a former United States Senator from Pennsylvania. Specter is a Democrat, but was a Republican from 1965 until switching to the Democratic Party in 2009...
of Pennsylvania, wrote an op/ed in the New York Times referring to Roe as a "super-precedent." He mentioned the concept (and made seemingly humorous references to "super-duper precedent") during the hearings, but neither Roberts nor Alito endorsed the term or the concept.
Criticism of Precedent
In a controversial 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: cases where the foreign jurisdiction's law is the subject of the case, or 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.See also
- Law of CitationsLaw of CitationsThe Law of Citations was a Roman law created in AD 426 by the emperor Theodosius II. It was designed to help judges deal with vast amounts of jurist writings on a subject and thus to reach a decision...
(Roman concept) - Binding precedentBinding precedentIn law, a binding precedent 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...
- Case citationCase citationCase citation is the system used in many countries to identify the decisions in past court cases, either in special series of books called reporters or law reports, or in a 'neutral' form which will identify a decision wherever it was reported...
- Case of first impression
- DistinguishDistinguishIn law, to distinguish a case means to contrast the facts of the case before the court from the facts of a case of precedent where there is an apparent similarity. By successfully distinguishing a case, the holding or legal reasoning of the earlier case will either not apply or will be limited...
- First impressionFirst impression (law)First impression 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...
- Persuasive precedentPersuasive precedentPersuasive precedent is precedent or other legal writing that is related to the case at hand but is not a binding precedent on the court under common law legal systems such as English law. However, persuasive authority may guide the judge in making the decision in the instant case...
- QiyasQiyasIn Islamic jurisprudence, qiyās is the process of deductive analogy in which the teachings of the Hadith are compared and contrasted with those of the Qur'an, in order to apply a known injunction to a new circumstance and create a new injunction...
- Question of factQuestion of factIn law, a question of fact is a question which must be answered by reference to facts and evidence, and inferences arising from those facts. Such a question is distinct from a question of law, which must be answered by applying relevant legal principles...
- Ratio decidendiRatio decidendiRatio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
- Stare decisisStare decisisStare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
- Commanding precedentCommanding precedentIn law, a commanding precedent is a precedent whose facts are "on all fours" with the case at hand. In other words, it almost exactly tracks it, sharing near-identical facts and issues. A commanding precedent is also referred to as a "Goose" case in Louisiana; "Spotted Horse" or "Spotted Dog" cases...