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In common law legal systems, a precedent or authority is a legal case establishing a principle or rule that a court or other judicial body adopts when deciding subsequent cases with similar issues or facts. Image File history File links Mergefrom. ... Case law (also known as decisional law) is that body of reported judicial opinions in countries that have common law legal systems that are published and thereby become precedent, i. ... Precedence is a simple ordering, based on either importance or sequence. ... This article concerns the common-law legal system, as contrasted with the civil law legal system; for other meanings of the term, within the field of law, see common law (disambiguation). ... A legal case is a dispute between opposing parties resolved by a court, or by some equivalent legal process. ... A trial at the Old Bailey in London as drawn by Thomas Rowlandson and Augustus Pugin for Ackermanns Microcosm of London (1808-11). ...

Description

The precedent on an issue is the collective body of judicially announced principles that a court should consider when interpreting the law. When a precedent establishes an important legal principle, or represents new or changed law on a particular issue, that precedent is often known as a landmark decision. A principle (not principal) is something, usually a rule or norm, that is part of the basis for something else. ...

Precedent is central to legal analysis and rulings in common law countries like the United States law. In some systems precedent is not binding but is taken into account by the courts.

Types of precedent

Binding precedent

Main article: Binding precedent

Precedent that must be applied or followed is known as binding precedent (alternately mandatory 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 the United States state and federal courts, jurisdiction is often divided geographically among local trial courts, several of which fall under the territory of a regional appeals court, and all regional courts fall under a supreme court. By definition decisions of lower courts are not binding on each other or any courts higher in the system, nor are appeals court decisions binding on each other or 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. In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts. ... In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts. ... Stare decisis (Latin: , Anglicisation: , to stand by things decided) is a Latin legal term, used in common law systems to express the notion that prior court decisions must be recognized as precedents, according to case law. ... The phrase lower court has several possible meanings in English: In reference to an appeal, the lower court is the court whose decision is being reviewed. ...

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 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.^[1]

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 in any event. In law, to distinguish a case means to differentiate the facts of the case before the court from the facts of a case of precedent where is material depends on the legal issue. ...

Persuasive precedent

Main article: Persuasive precedent

Precedent that is not mandatory but which is useful or relevant is known as persuasive precedent (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. Precedent that is not binding on the court; but the judge may consider that it is the correct principle, so he is persuaded that he should follow it. ... Precedent that is not binding on the court; but the judge may consider that it is the correct principle, so he is persuaded that he should follow it. ...

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 the adoption of the persuasive precedent by a higher court. And this is due to per incuram. Dr. McMinge a self made law lord said " the lords can change its decision when it appears right to do so". A case of first impression is a case or controversy over an interpretation of law never before reported or decided by that court. ... This article does not cite any references or sources. ...

Custom

Long-held custom, which has traditionally been recognized by courts and judges, is the first kind of precedent. Custom can be so deeply entrenched in the society at large that it gains the force of law. There need never have been a specific case decided on the same or similar issues in order for a court to take notice of customary or traditional precedent in its deliberations. In law, custom can be described as the established patterns of behavior that can be objectively verified within a particular social setting. ...

Case law

The other type of precedent is case law. In common law systems this type of precedent is granted more or less weight in the deliberations of a court according to a number of factors. Most important is whether the precedent is "on point," that is, does it deal with a circumstance identical or very similar to the circumstance in the instant case? Second, when and where was the precedent decided? A recent decision in the same jurisdiction as the instant case will be given great weight. Next in descending order would be recent precedent in jurisdictions whose law is the same as local law. Least weight would be given to precedent that stems from dissimilar circumstances, older cases that have since been contradicted, or cases in jurisdictions that have dissimilar law. Case law (also known as decisional law) is that body of reported judicial opinions in countries that have common law legal systems that are published and thereby become precedent, i. ...

Critical analysis of precedent

Court formulations

The United States Court of Appeals for the Third Circuit has stated: The United States Court of Appeals for the Third Circuit is a federal court with appellate jurisdiction over the following United States District Courts: District of Delaware District of New Jersey Western, Middle, and Eastern Districts of Pennsylvania District of the United States Virgin Islands The court is based at...

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.^[2]

The United States Court of Appeals for the Ninth Circuit has stated: The U.S. Court of Appeals for the Ninth Circuit is a federal court with appellate jurisdiction over the district courts in the following districts: District of Alaska District of Arizona Central District of California Eastern District of California Northern District of California Southern District of California District of Hawaii...

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.^[3]

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 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. ^[4] Network theory or diktyology is a branch of applied mathematics and physics, with the same general subject matter as graph theory. ...

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,^[5] or alternately, 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.^[6] 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.^[7] 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."^[8] Richard Allen Posner (born January 11, 1939, in New York City) is currently a judge on the United States Court of Appeals for the Seventh Circuit. ... Holding A Pennsylvania law that required spousal notification prior to obtaining an abortion was invalid under the Fourteenth Amendment because it created an undue burden on married women seeking an abortion. ... Holding Texas law making it a crime to assist a woman to get an abortion violated her due process rights. ...

The issue arose anew 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.^[9] [edit] John G. Roberts, Jr. ... Samuel Anthony Alito, Jr. ... Arlen J. Specter (born February 12, 1930) is a United States Senator from Pennsylvania. ... The New York Times is an internationally known daily newspaper published in New York City and distributed in the United States and many other nations worldwide. ...

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:

(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.^[10]

See also

• Binding precedent
• Case citation
• Case of first impression
• Persuasive precedent
• Stare decisis
• Ratio decidendi
• Distinguish
• Qiyas

In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be followed by all lower courts. ... // The United States Reports, the official reporter of the Supreme Court of the United States Case 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... A case of first impression is a case or controversy over an interpretation of law never before reported or decided by that court. ... Precedent that is not binding on the court; but the judge may consider that it is the correct principle, so he is persuaded that he should follow it. ... Stare decisis (Latin: , Anglicisation: , to stand by things decided) is a Latin legal term, used in common law systems to express the notion that prior court decisions must be recognized as precedents, according to case law. ... This article or section does not cite its references or sources. ... In law, to distinguish a case means to differentiate the facts of the case before the court from the facts of a case of precedent where is material depends on the legal issue. ... In Sunni Islamic jurisprudence, Qiyas is the process of analogical reasoning from a known injunction (nass) to a new injunction. ...

Notes

1. ^ Marjorie D. Rombauer, Legal Problem Solving: Analysis, Research and Writing, pp. 22-23 (West Publishing Co., 3d ed. 1978). (Rombauer was a professor of law at the University of Washington.)
2. ^ Allegheny General Hospital v. NLRB, 608 F.2d 965, 969-970 (3rd Cir. 1979) (footnote omitted), as quoted in United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).
3. ^ United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).
4. ^ James H. Fowler and Sangick Jeon, "The Authority of Supreme Court Precedent," Social Networks (2007), doi:10.1016/j.socnet.2007.05.001
5. ^ Sinclair, Michael. "Precedent, Super-Precedent", George Mason Law Review (14 Geo. Mason L. Rev. 363) (2007)
6. ^ Landes, William & Posner, Richard. “Legal Precedent: A Theoretical and Empirical Analysis”, 19 Journal of Law and Economics 249, 251 (1976).
7. ^ Hayward, Allison. The Per Curiam Opinion of Steel: Buckley v. Valeo as Superprecedent?, Cato Supreme Court Review 195, 202, (2005-2006).
8. ^ Maltz, Earl. "Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeastern Pennsylvania v. Casey", 68 Notre Dame L. Rev. 11 (1992), quoted by Rosen, Jeffrey. So, Do You Believe in 'Superprecedent'?, NY Times (2005-10-30).
9. ^ Benac, Nancy. Roberts Repeatedly Dodges Roe v. Wade, Associated Press (2005-09-13): Specter asked, "Would you think that Roe might be a super-duper precedent?"
10. ^ Michael H. Trotter, Profit and the Practice of Law: What's Happened to the Legal Profession (Athens, GA: University of Georgia Press, 1997), 161-163.