Not to be confused with President, nor [the plural] with "precedence".

The examples and perspective in this article may not represent a worldwide view of the subject. Please improve this article and discuss the issue on the talk page. (December 2010)

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 facts. 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]

In other words, precedent can be defined as "an already decided decision which furnishes the basis for later cases involving similar facts and issues."

Type of precedent[link]

Binding precedent[link]

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).

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.^[2]

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.^[3][4] A federal court interpreting state law is bound by prior decisions of the state supreme court.^[5]

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.

Persuasive precedent[link]

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.

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.

Critical analysis of precedent[link]

Court formulations[link]

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.^[6]

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.^[7]

Justice McHugh of the High Court of Australia 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[link]

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.^[8]

Super stare decisis[link]

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,^[9] 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.^[10] 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.^[11] 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."^[12]

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.^[13]

Criticism of Precedent[link]

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.^[14]

See also[link]

Wikiquote has a collection of quotations related to: Precedents

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

Notes[link]

1. ^ Black's Law Dictionary, p. 1059 (5th ed. 1979).
2. ^ 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.)
3. ^ http://heinonline.org/HOL/LandingPage?collection=journals&handle=hein.journals/tlr51&div=41&id=&page=
4. ^ http://en.wikipedia.org/wiki/United_States_federal_courts
5. ^ http://faculty.law.lsu.edu/toddbruno/mandatory_v__persuasive.htm
6. ^ 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).
7. ^ 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).
8. ^ James H. Fowler and Sangick Jeon, "The Authority of Supreme Court Precedent," Social Networks (2007), doi:10.1016/j.socnet.2007.05.001
9. ^ Sinclair, Michael. "Precedent, Super-Precedent", George Mason Law Review (14 Geo. Mason L. Rev. 363) (2007)
10. ^ Landes, William & Posner, Richard. "Legal Precedent: A Theoretical and Empirical Analysis", 19 Journal of Law and Economics 249, 251 (1976).
11. ^ Hayward, Allison. The Per Curiam Opinion of Steel: Buckley v. Valeo as Superprecedent?, Cato Supreme Court Review 195, 202, (2005-2006).
12. ^ 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).
13. ^ 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?"
14. ^ 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.

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