Precedent

Rule established in an earlier legal case

Not to be confused with Precedence or President.

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Precedent is a principle or rule established in a legal case that becomes authoritative to a court or other tribunal when deciding subsequent cases with similar legal issues or facts.[1][2][3] The legal doctrine stating that courts should follow precedent is called stare decisis (a Latin phrase with the literal meaning "to stand by things decided").[4]

Common-law legal systems often view precedent as binding or persuasive, while civil law systems do not. Common-law systems aim for similar facts to yield similar and predictable outcomes, and observing precedent when making decisions is the mechanism to achieve that goal. Common-law precedent is a third kind of law, on equal footing with statutory law (that is, statutes and codes enacted by legislative bodies) and subordinate legislation (that is, regulations promulgated by executive branch agencies, in the form of delegated legislation) in UK parlance – or regulatory law (in US parlance).

Case law, in common-law jurisdictions, is the set of decisions of adjudicatory tribunals or other rulings 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. Essential to the development of case law is the publication and indexing of decisions for use by lawyers, courts, and the general public, in the form of law reports. A precedent is a historical setting example for the future (though at varying levels of authority as discussed throughout this article), some become "leading cases" or "landmark decisions" that are cited especially often.

Generally speaking, a legal precedent may be:

* applied (if precedent is binding) / adopted (if precedent is persuasive), if the principles underpinning the previous decision are accordingly used to evaluate the issues of the subsequent case;
* distinguished, if the principles underpinning the previous decision are found specific to, or premised upon, certain factual scenarios, and not applied to the subsequent case because of the absence or material difference in the latter's facts;
* modified, if the same court on determination of the same case on order from a higher court modified one or more parts of the previous decision; or
* overruled, if the same or higher courts on appeal or determination of subsequent cases found the principles underpinning the previous decision erroneous in law or overtaken by new legislation or developments.

In contrast, civil law systems adhere to a legal positivism, where past decisions do not usually have the precedential, binding effect that they have in common law decision-making; the judicial review practiced by constitutional courts can be regarded as a notable exception.

## Principle[edit]

Stare decisis (/ˈstɛərri dɪˈsaɪsɪs, ˈstɑːreɪ/) 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".[5] In a legal context, this means that courts should abide by precedent and not disturb settled matters.[5] The principle can be divided into two components:[6]

1. 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 must follow.[6]
2. A court may overturn its own precedent, but should do so only if a strong reason exists to do so, and even in that case, should be guided by principles from superior, lateral, and inferior courts.[6]

The second principle, regarding persuasive precedent, reflects the broad precedent guidance a court may draw upon in reaching all of its decisions.[6]

### Case law in common-law systems[edit]

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.[7] For example, in England and Wales, the High Court and the Court of Appeal are each bound by their own previous decisions. The Supreme Court of the United Kingdom is able to deviate from its earlier decisions, although in practice it rarely does so.

A lower court may not rule against a binding precedent, even if the lower court feels that the precedent is wrong. Even if an intermediate judge issues a ruling inconsistent with existing or subsequent precedent, if the case is not vacated on appeal the decision will stand.[citation needed]

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 decision 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 nonbinding 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 multijurisdictional law systems, conflicts may exist between the various lower appellate courts. Sometimes these differences may not be resolved and distinguishing how the law is applied in one district, province, division or appellate department may be necessary. 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, 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.[8]

When various members of a multi-judge court write separate opinions, the reasoning may differ; only the ratio decidendi of the majority becomes binding precedent. For example, if a 12-member court splits 5–2–3–2 in four different opinions on several different issues, whatever reasoning commands seven votes on each specific issue becomes precedent, and the seven-judge majorities may differ issue-to-issue. All may be cited as persuasive (though of course opinions that concur in the majority result are more persuasive than dissents).

Quite apart from the rules of precedent, the weight actually given to any reported opinion may depend on the reputation of both the court and the judges with respect to the specific issue. For example, in the United States, the Second Circuit (New York and surrounding states) is especially respected in commercial and securities law, the Seventh Circuit (in Chicago), especially Judge Posner, is highly regarded on antitrust, and the District of Columbia Circuit is highly regarded on administrative law.

## Dimensions of precedent[edit]

### Vertical precedent[edit]

The doctrine of vertical precedent states that each court is bound by the decisions of higher courts in its jurisdictional area or tribunal hierarchy.[4] Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. Thus, the lower 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.[9]

### Horizontal precedent[edit]

The doctrine stating that a judge is bound by (or at least should respect) previous decisions by the same court is called horizontal stare decisis.[4]

For example, 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, and 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.[10] 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.

### Federalism and parallel state and federal courts[edit]

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.

* When a federal court rules on an issue of state law, the federal court must follow the precedent of the state courts, under the Erie doctrine. 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.[11]
* On the other hand, when a state court rules on an issue of federal law, the state court is bound only by rulings of the Supreme Court, but not by decisions of federal district or circuit courts of appeals.[12][13][14] However some states have adopted a practice of considering themselves bound by rulings of the court of appeals embracing their states, as a matter of comity rather than constitutional obligation.[15]

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.

## Categories and classifications of precedent[edit]

### Binding precedent[edit]

See also: Law of the case

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.[16]

In law, a binding precedent (also known as a 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.[17]

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.[18]

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 hierarchical structures similar to that of the federal system.[19][20]

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.[citation needed]

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 (the mid-level appeals court that hears appeals from district court decisions from Delaware, New Jersey, Pennsylvania, and the Virgin Islands) is bound by rulings of the Third Circuit Court, but not by rulings in the Ninth Circuit (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington), 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.[21]

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."[22]

#### Binding precedent in English law[edit]

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 other countries, 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.[23]

Two facts are crucial to determining whether a precedent is binding:

1. The position in the court hierarchy of the court which decided the precedent, relative to the position in the court trying the current case.
2. Whether the facts of the current case come within the scope of the principle of law in previous decisions.[23]

In a conflict of laws situation, jus cogens norms erga omnes and principles of the common law such as in the Universal Declaration of Human Rights, to a varying degree in different jurisdictions, are deemed overriding which means they are used to "read down" legislation, that is giving them a particular purposive interpretation, for example applying European Court of Human Rights jurisprudence of courts (case law).[24]

#### "Super stare decisis"[edit]

"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,[25] 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.[26] 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.[27] 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".[28] 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.[citation needed]

The concept of super-stare decisis (or "super-precedent") was mentioned during the hearings of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Prior to the commencement of the Roberts hearings, the committee chair, 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.[29]

### Persuasive precedent[edit]

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.[citation needed]

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.[citation needed]

#### Higher courts in other circuits[edit]

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.[citation needed]

#### Horizontal courts[edit]

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.[30]

#### Statements made in obiter dicta[edit]

Courts may consider obiter dicta in the opinions of higher courts. The 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[31] that a particular legal argument is weak and may even warrant sanctions if repeated.[citation needed]

#### Dissenting opinions[edit]

A case decided by a multijudge 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:[citation needed]

* 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 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).[citation needed]

#### Secondary sources[edit]

##### Treatises, restatements of the law, and law reviews.[edit]

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.[citation needed]

##### State attorney general opinions[edit]

In the United States, every state attorney general is permitted to issue advisory opinions on questions of law.[32] It is a process that has its origins in the English common law.[33] Most state attorney opinions address issues of government finance or the authority of political bodies within the state.[34] Often, these opinions are the only available authority interpreting rarely‑litigated statutes and constitutional provisions.[34]

By and large, courts treat state attorney general opinions as persuasive authority.[35] The opinions lack the force of law that statutes and judicial opinions have.[36] But, they still have the potential to act as a sort of pseudo‑law if they constrain the activities of public officials or the public.[34] Oftentimes, this effect depends on the “formality” of the opinion.[34] Opinions can be either formal, meaning they are published, or informal, meaning that they are sent directly to the opinion requestor.[34] Although formal opinions can act as a sort of binding precedent when they answer legal questions that a court has not, either form of opinion may act as a source of law if they have a direct effect on the administration of government.[32][34]

#### Persuasive effect of decisions from other jurisdictions[edit]

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 such as 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.[citation needed]

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. 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. 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.[citation needed]

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.[citation needed]

### Nonprecedential decisions[edit]

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

Nonpublication 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 cases 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.[37]

Litigation that is settled out of court generates no written decision, 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.[38]

### Res judicata, claim preclusion, collateral estoppel, issue preclusion, law of the case[edit]

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[edit]

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 regardless of 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).[citation needed]

#### Collateral estoppel, issue preclusion[edit]

Main article: Collateral estoppel

Once a case is finally decided, any issues decided in the previous case may be binding against the party who 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 reprove 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 reproven. Again, limits and exceptions on this principle exist. The principle is called collateral estoppel or issue preclusion.[39]

#### Law of the case[edit]

Main article: Law of the case

Within a single case, once there has 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".[citation needed]

### Splits, tensions[edit]

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[edit]

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[edit]

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[edit]

### Matter of first impression[edit]

A matter of first impression (also known as an "issue of first impression", "case of first impression", or, in Latin, as primae impressionis) is an issue where the parties disagree on what the applicable law is, and there is no prior binding authority, so that the matter has to be decided for the first time. A first impression case may be a first impression in only a particular jurisdiction.

By definition, a case of first impression cannot be decided by precedent. Since there is no precedent for the court to follow, the court uses the plain language and legislative history of any statute that must be interpreted, holdings of other jurisdictions, persuasive authority and analogies from prior rulings by other courts (which may be higher, peers, or lower courts in the hierarchy, or from other jurisdictions), commentaries and articles by legal scholars, and the court's own logic and sense of justice.[citation needed]

## Contrasting role of case law in common law, civil law, and mixed systems [edit]

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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. These are called ratio decidendi and constitute a precedent binding on other courts; further analyses not strictly necessary to the determination of the current case are called obiter dicta, which have persuasive authority but are not technically binding. By contrast, decisions in civil law jurisdictions are generally very short,[citation needed] referring only to statutes,[citation needed] not very analytical,[citation needed] and fact-based.[40] The reason for this difference is that these civil law jurisdictions apply legislative positivism – a form of legal positivism – which holds that legislation is the only valid source of law because it has been voted on democratically; thus, it is not the judiciary's role to create law, but rather to interpret and apply statute, and therefore their decisions must reflect that.[citation needed]

### Civil law systems[edit]

Stare decisis is not usually a doctrine used in civil law systems, because it violates the legislative positivist principle that only the legislature may make law. Instead, the civil law system relies on the doctrine of jurisprudence constante, according to which if a court has adjudicated a consistent line of cases that arrive at the same holdings using sound reasoning, then the previous decisions are highly persuasive but not controlling on issues of law. This doctrine is similar to stare decisis insofar as it dictates that a court's decision must condone a cohesive and predictable result. In theory, lower courts are generally not bound by the precedents of higher courts. In practice, the need for predictability means that lower courts generally defer to the precedent of higher courts. As a result, the precedent of courts of last resort, such as the French Cassation Court and the Council of State, is recognized as being de facto binding on lower courts.

The doctrine of jurisprudence constante also influences how court decisions are structured. In general, court decisions of common law jurisdictions give a sufficient ratio decidendi as to guide future courts. The ratio is used 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 codal provisions and not going into the ratio decidendi in any great detail. This is the result of the legislative positivist view that the court is only interpreting the legislature's intent and therefore detailed exposition is unnecessary. Because of this, ratio decidendi is carried out by legal academics (doctrinal writers) who provide the explanations that in common law jurisdictions would be provided by the judges themselves.[citation needed]

In other civil law jurisdictions, such as the German-speaking countries, ratio decidendi tend to be much more developed than in France, and courts will frequently cite previous cases and doctrinal writers. 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 mixed systems of the Nordic countries are sometimes considered a branch of the civil law, but they are 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 has persuasive authority on all future application of the law. Appellate courts, be they judicial (hovrätter) or administrative (kammarrätter), may also issue decisions that act as guides for the application of the law, but these decisions are persuasive, not controlling, and may therefore be overturned by higher courts.[citation needed]

### Mixed or bijuridical systems[edit]

Some mixed systems, such as Scots law in Scotland, South-African law, Laws of the Philippines, and the law of Quebec and Louisiana, do not fit into the civil vs. common law dichotomy because they mix portions of both. Such systems may have been heavily influenced by the common law tradition; however, their private 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. Louisiana courts, for instance, operate under both stare decisis and jurisprudence constante. In South Africa, the precedent of higher courts is absolutely or fully binding on lower courts, whereas the precedent of lower courts only has persuasive authority on higher courts; horizontally, precedent is prima facie or presumptively binding between courts.[citation needed]

### Role of academics in civil law jurisdictions[edit]

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.[citation needed]

## Critical analysis[edit]

### Court formulations[edit]

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. ...

In his "landmark dissent" in Burnet, Brandeis "catalogued the Court's actual overruling practices in such a powerful manner that his attendant stare decisis analysis immediately assumed canonical authority."[41]

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.[42]

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.[43]

Lord Hodge of the UK Supreme Court quoted[44][45] Lord Wright in 1938 saying:

> [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[edit]

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.[46]

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.[47]

## Application[edit]

### Development[edit]

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 did 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.[48]

### United States legal system[edit]

Over time courts in the United States and especially its Supreme Court developed a large body of judicial decisions which are called "precedents". These "[r]ules and principles established in prior cases inform the Court's future decisions."[49] The adherence to rules and principles created in past cases as a foundation for future decisions by the courts is called stare decisis. The United States Supreme Court considers stare decisis not only as an important doctrine, but also "the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion."[50] Stare decisis aims to bolster the legitimacy of the judicial process and foster the rule of law. It does so by strengthening stability, certainty, predictability, consistency and uniformity in the application of the law to cases and litigants.[49] By adhering to stare decisis the Supreme Court attempts to preserve its role "as a careful, unbiased, and predictable decisionmaker that decides cases according to the law rather than the Justices' individual policy preferences."[49] In Vasquez v. Hillery (1986) the Supreme Court stated succinctly that stare decisis "contributes to the integrity of our constitutional system of government, both in appearance and in fact" by maintaining the notion "that bedrock principles are founded in the law, rather than in the proclivities of individuals."[50]

Stare decisis reduces the number and scope of legal questions that the court must resolve in litigation. It is therefore a time saver for judges and litigants. Once a court has settled a particular question of law it has established a precedent. Thanks to stare decisis lawsuits can be quickly and efficiently dismissed because legal battles can be resolved through recourse to rules and principles established prior decisions. Stare decisis can thus encourage parties to settle cases out of court and thereby enhance judicial efficiency.[49]

Several Supreme Court decisions were overruled by subsequent decisions since 1798.[51] In doing so the Supreme Court has time and time again made several statements regarding stare decisis.[49] The following is a non-exhaustive list of examples of these statements:[52]

* Citizens United v. FEC, 558 U.S. 310, at 378 (2010) (Roberts, J., concurring): [Stare decisis'] greatest purpose is to serve a constitutional ideal—the rule of law. It follows that in the unusual circumstance when fidelity to any particular precedent does more damage to this constitutional ideal than to advance it, we must be more willing to depart from that precedent." (citations omitted)
* Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, at 854 (1992) "[T]he very concept of the rule of law underlying our own Constitution requires such continuity over time that a respect for precedent is, by definition, indispensable.") (citations omitted)
* Alleyne v. United States, 570 U.S. 99, 118 (2013) (Sotomayor, J., concurring): "We generally adhere to our prior decisions, even if we questions their soundness, because doing so 'promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.'")
* Hilton v. South Carolina Public. Railway Commission, 502 U.S. 197, at 202 (1991): "Adherence to precedent promotes stability, predictability, and respect for judicial authority."
* Payne v. Tennessee, 501 U.S. 808, at 827 (1991): "Stare decisis is the preferred course because it promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process."
* Vasquez v. Hillery, 474 U.S. 254, at 265-66 (1986): "[T]he important doctrine of stare decisis [is] the means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion. That doctrine permits society to presume that bedrock principles are founded in the law, rather than in the proclivities of individuals, and thereby contributes to the integrity of our constitutional system of government, both in appearance and in fact."
* Taylor v. Sturgell, 553 U.S. 880, at 903 (2008): "[S]tare decisis will allow courts swiftly to dispose of repetitive suits ...")
* Payne v. Tennessee, 501 U.S. 808, at 834 (1991) (Scalia, J., concurring): "What would enshrine power as the governing principle of this Court is the notion that an important constitutional decision with plainly inadequate rational support must be left in place for the sole reason that it once attracted a [majority of the Court]."
* Patterson v. McLean Credit Union, 491 U.S. 164, at 172 (1989): "Our precedents are not sacrosanct, for we have overruled prior decisions where the necessity and propriety of doing so has been established."
* Smith v. Allwright, 321 U.S. 649, at 665 (1944): "[W]hen convinced of former error, this Court has never felt constrained to follow precedents. 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."
* Janus v. Am. Fed. of State, County, & Mun. Employees, 585 U.S. ___, No. 16-1466, slip op. at 34 (2018): "We will not overturn a past decision unless there are strong grounds for doing so."
* Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, at 864 (1992) (plurality opinion): "[A] decision to overrule should rest on some special reason over and above the belief that a prior case was wrongly decided. The plurality opinion in Casey stated also that reexamining precedent requires more than "a present doctrinal disposition to come out differently".
* Arizona v. Rumsey, 467 U.S. 203, at 212 (1984): "Although adherence to precedent is not rigidly required in constitutional cases, any departure from the doctrine of stare decisis demands special justification."

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".[53]

In the U.S. Supreme Court, the principle of stare decisis is most flexible in constitutional cases, as observed by Justice Brandeis in his landmark dissent in Burnet (as quoted at length above).[54] For example, in the years 1946–1992, the U.S. Supreme Court reversed itself in about 130 cases.[55] The U.S. Supreme Court has further explained as follows:

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

> — Smith v. Allwright, 321 U.S. 649, 665 (1944)(Reed, S.F.).[56]

The 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".[57]

As Colin Starger has pointed out, the contemporary rule of stare decisis descended from Brandeis's landmark dissent in Burnet would later split into strong and weak conceptions as a result of the disagreement between Chief Justice William Rehnquist and Associate Justice Thurgood Marshall in Payne v. Tennessee (1991).[58] The strong conception requires a "special justification" to overrule challenged precedent beyond the fact the precedent was "wrongly decided", while the weak conception holds that a precedent can be overruled if it suffers from "bad reasoning".[58]

The opinion of Chief Justice John Roberts in the case June Medical Services, LLC v. Russo provides a clear statement of the strong conception of stare decisis. In this case, the Court upheld, by a 5-4 margin, their 2016 decision in Whole Woman's Health v. Hellerstedt that struck down a similar Texas law requiring doctors who perform abortions to have the right to admit patients at a nearby hospital. Roberts wrote, “The legal doctrine of stare decisis requires us, absent special circumstances, to treat like cases alike." Roberts provided the fifth vote to uphold the 2016 decision, even though he felt it was wrongly decided.[59]

### English legal system[edit]

The doctrine of binding precedent or stare decisis is basic to the English legal system. Special features of the English legal system include the following:

#### The Supreme Court's ability to override its own precedent[edit]

The British House of Lords, as the court of last appeal outside Scotland before it was replaced by 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.[60]

However, the Practice Statement was seldom applied by the House of Lords, usually only as a last resort. Up to 2005,[needs update] the House of Lords rejected its past decisions no more than 20 times.[61] They were reluctant to use it because they feared 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 pretension to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better."[62] 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[edit]

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.[citation needed]

## Rules of statutory interpretation[edit]

Main article: Statutory interpretation

One of the most important roles of precedent is to resolve ambiguities in other legal texts, such as constitutions, statutes, and regulations. The process involves, first and foremost, consultation of the plain language of the text, as enlightened by the legislative history of enactment, subsequent precedent, and experience with various interpretations of similar texts.

### Statutory interpretation in the UK[edit]

A judge's normal aids include access to all previous cases in which a precedent has been set, and a good English dictionary.

Judges and barristers in the UK use three primary rules for interpreting the law.

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),[63] in which several judges in separate opinions found several different dictionary meanings of the word supply. Another example is 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, merely an invitation to treat. 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. There are two ways in which the golden rule can be applied: a narrow method, and a broad method. Under the narrow method, when there are apparently two contradictory meanings to the wording of a legislative provision, or the wording is ambiguous, the least absurd is to be preferred. Under the broad method, the court modifies the literal meaning in such a way as to avoid the absurd result.[64] An example of the latter approach is Adler v George (1964). Under the Official Secrets Act 1920 it was an offence to obstruct HM Forces "in the vicinity of" a prohibited place. Adler argued that he was not in the vicinity of such a place but was actually in it. The court chose not to read the statutory wording in a literal sense to avoid what would otherwise be an absurd result, and Adler was convicted.[65]

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. The final rule; although will no longer be used after the UK fully transitions out of the European Union. Known as the Purposive approach- this considers the intention of the European Court of Justice when the act was passed.

### Statutory interpretation in the United States[edit]

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).

However, most legal texts have some lingering ambiguity—inevitably, situations arise in which the words chosen by the legislature do not address the precise facts in issue, or there is some tension among two or more statutes. In such cases, a court must analyze the various available sources, and reach a resolution of the ambiguity. The "Canons of statutory construction" are discussed in a separate article. Once the ambiguity is resolved, that resolution has binding effect as described in the rest of this article.

## Practical application[edit]

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[edit]

Occasionally, lower court judges may explicitly state a personal disagreement with the rendered judgment, but are required to rule a particular way because of binding precedent.[66] Inferior courts cannot evade binding precedent of superior courts, but a court can depart from its own prior decisions.[67]

### Structural considerations[edit]

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.[68]

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[edit]

Originalism is an approach to interpretation of a legal text in which controlling weight is given to the intent of the original authors (at least the intent as inferred by a modern judge). In contrast, a non-originalist looks at other cues to meaning, including the current meaning of the words, the pattern and trend of other judicial decisions, changing context and improved scientific understanding, observation of practical outcomes and "what works", contemporary standards of justice, and stare decisis. Both are directed at interpreting the text, not changing it—interpretation is the process of resolving ambiguity and choosing from among possible meanings, not changing the text.

The two approaches look at different sets of underlying facts that may or may not point in the same direction—stare decisis gives most weight to the newest understanding of a legal text, while originalism gives most weight to the oldest. While they do not necessarily reach different results in every case, the two approaches are in direct tension. Originalists such as Justice Antonin Scalia argue that "Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law."[69] Justice Scalia argues 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 originalist's own interpretation of the Constitutional text or inferences of original intent (even in situations where there is no original source statement of that original intent). 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.

Originalists vary in the degree to which they defer to precedent. 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.

> — [70]

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."[71]

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.[72]

### Advantages and disadvantages[edit]

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

### Criticism of precedent[edit]

One of the most prominent critics of the development of legal precedent on a case-by-case basis as both overly reactive and unfairly retroactive was philosopher Jeremy Bentham. He famously attacked the common law as "dog law":

> When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me.[73][74]

In a 1997 book, attorney Michael Trotter blamed overreliance by American lawyers on precedent — especially persuasive authority of marginal relevance — 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 authority from outside their jurisdiction and force lawyers and parties to argue only from binding precedent, subject to 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 countervailing trend in other jurisdictions.[75]

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

An argument often leveled against precedent is that it is undemocratic because it allows judges, who may or may not be elected, to make law.[76]

### Agreement with precedent[edit]

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.[77] 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[78]

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 .

## See also[edit]

* Case citation
* Case of first impression
* Commanding precedent
* Custom (law)
* Distinguish
* First impression
* Law of Citations (Roman concept)
* Legal opinion
* List of landmark court decisions in the United States
* List of overruled United States Supreme Court decisions
* Memorandum opinion
* Persuasive precedent
* Precedent book
* Question of fact
* Qiyas
* Ratio decidendi
* Taqlid

## Notes[edit]

1. ^ Precedent. Dictionary.com. Retrieved 6 September 2018.
2. ^ Black's Law Dictionary, p. 1059 (5th ed. 1979).
3. ^ Pattinson, Shaun D (1 March 2015). "The Human Rights Act and the doctrine of precedent" (PDF). Legal Studies. 35 (1): 142–164. doi:10.1111/lest.12049. ISSN 1748-121X. S2CID 29507544.
4. ^ a b c "stare decisis". LII / Legal Information Institute. Retrieved 11 January 2024.
5. ^ a b Adeleye, Gabriel et al. World Dictionary of Foreign Expressions: a Resource for Readers and Writers, page 371 (1999).
6. ^ a b c d Kmiec, Keenan. The Origin and Current Meanings of "Judicial Activism", California Law Review (2004):

> Some instances of disregarding precedent are almost universally considered inappropriate. For example, in a rare showing of unity in a Supreme Court opinion discussing judicial activism, Justice Stevens wrote that a circuit court "engaged in an indefensible brand of judicial activism" when it "refused to follow" a "controlling precedent" of the Supreme Court. The rule that lower courts should abide by controlling precedent, sometimes called "vertical precedent," can safely be called settled law. It appears to be equally well accepted that the act of disregarding vertical precedent qualifies as one kind of judicial activism. "Horizontal precedent," the doctrine requiring a court "to follow its own prior decisions in similar cases," is a more complicated and debatable matter....[A]cademics argue that it is sometimes proper to disregard horizontal precedent. Professor Gary Lawson, for example, has argued that stare decisis itself may be unconstitutional if it requires the Court to adhere to an erroneous reading of the Constitution. "If the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution." In the same vein, Professors Ahkil Amar and Vikram Amar have stated, "Our general view is that the Rehnquist Court's articulated theory of stare decisis tends to improperly elevate judicial doctrine over the Constitution itself." It does so, they argue, "by requiring excessive deference to past decisions that themselves may have been misinterpretations of the law of the land. For Lawson, Akhil Amar, and Vikram Amar, dismissing erroneous horizontal precedent would not be judicial activism; instead, it would be appropriate constitutional decisionmaking.

> — Walton Myers

7. ^ "Archived copy" (PDF). Archived from the original (PDF) on 1 May 2013. Retrieved 1 May 2013.`{{cite web}}`: CS1 maint: archived copy as title (link)
8. ^ Coale & Dyrek, "First Impressions", Appellate Advocate (Winter 2012).
9. ^ Auto Equity Sales, Inc. v. Superior Court, 57 Cal. 2d 450 (1962).
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11. ^ "Mandatory v. Persuasive". Faculty.law.lsu.edu. Archived from the original on 25 October 2012. Retrieved 2 November 2012.
12. ^ People v. Leonard, 40 Cal. 4th 1370, 1416 (2007) (Ninth Circuit decisions do not bind Supreme Court of California).
13. ^ Martin, John H. (1972–1973). "51 Texas Law Review 1972-1973 Binding Effect of Federal Declaratory Judgments on State Courts Comment". Texas Law Review. 51: 743. Retrieved 2 November 2012.
14. ^ United States federal courts
15. ^ Wrabley, Colin E. (2006). "Applying Federal Court of Appeals' Precedent: Contrasting Approaches to Applying Court of Appeals' Federal Law Holdings and Erie State Law Predictions, 3 Seton Hall Circuit Rev. 1" (PDF). m.reedsmith.com. Archived from the original (PDF) on 17 October 2016. Retrieved 2 March 2016.
16. ^ Alexander, Larry (1989). "Constrained by Precedent". S. Cal. L. Rev. 63: 18.
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18. ^ Rombauer, Marjorie D. (1978). Legal Problem Solving: Analysis, Research and Writing (3rd ed.). West Publishing. pp. 22–23. ISBN 0-8299-2002-1. (Rombauer was a professor of law at the University of Washington.)
19. ^ "Introduction To The Federal Court System". www.justice.gov. 7 November 2014. Retrieved 12 May 2022.
20. ^ "Comparing Federal & State Courts". United States Courts. Retrieved 12 May 2022.
21. ^ Philip Allen Lacovara, Federal Appellate Practice 647 (2008).
22. ^ 1966 Practice Statement (Judicial Precedent) by Lord Gardiner L.C
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24. ^ "William Tetley, Mixed jurisdictions: common law vs civil law (codified and uncodified) (Part I)". www.cisg.law.pace.edu. Retrieved 7 June 2019.
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26. ^ Landes, William; Posner, Richard (1976). "Legal Precedent: A Theoretical and Empirical Analysis" (PDF). Journal of Law and Economics. 19 (2): 249–307 [p. 251]. doi:10.1086/466868. S2CID 154308093.
27. ^ Hayward, Allison (2005–2006). "The Per Curiam Opinion of Steel: Buckley v. Valeo as Superprecedent?". Cato Supreme Court Review: 195–216 [p. 202].
28. ^ Maltz, Earl (1992). "Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeastern Pennsylvania v. Casey". Notre Dame L. Rev. 68 (1): 11–32. PMID 11656531, quoted by Rosen, Jeffrey (30 October 2005). "So, Do You Believe in 'Superprecedent'?". The New York Times.
29. ^ Benac, Nancy (13 September 2005). "Roberts Repeatedly Dodges Roe v. Wade". Associated Press. Archived from the original on 31 August 2012.
30. ^ "stare decisis". LII / Legal Information Institute. Retrieved 10 October 2022.
31. ^ Coale & Couture, Loud Rules, 34 Pepperdine L. Rev. 3 (2007).
32. ^ a b Osvaldo Jordan, Comment, The State Attorney General’s Duty to Advice as a Source of Law, 54 Richmond L. Rev. 1139, 1140 (2020) (stating that “all state attorneys general share a common duty to issue written advisory opinions on matters of law to state officials who request them” and discussing SAG opinions).
33. ^ Ian Eppler, The Opinion Power of the State Attorney General and the Attorney General as a Public Law Actor, 29 B.U. Pub. Int. L.J. 111, 112, (2019) (“At English common law, the Attorney General had the power to issue opinions to Parliament, and as with many aspects of English common law, this power was imported into the nascent American legal system.”).
34. ^ a b c d e f Thomas R. Morris, State Attorneys General as Interpreters of State Constitutions, 17 Publius 133, 134 (1987).
35. ^ See, e.g., Charleston Cnty. Sch. Dist. v. Harrell, 713 S.E.2d 604, 609 (S.C. 2011) (“Attorney General opinions, while persuasive, are not binding upon this Court.”); U.S. v. Lawson, 677 F.3d 629, 654 (4th Cir. 2012) (“In the absence of any South Carolina law to the contrary, we find persuasive the South Carolina Attorney General's interpretation of this South Carolina law.”).
36. ^ Robert K. Mills & Jon S. Schultz, South Carolina Legal Research Handbook 123 (1976) (“Attorney general opinions lack the same force of law as a statute or a judicial opinion since they usually do not bind entities in other parts of government.”).
37. ^ Shafer, John. "LibGuides: Depublication of California Cases: What is Depublication?". legalresearch.usfca.edu. Retrieved 8 August 2022.
38. ^ "UNITED STATES v. WINDSOR". LII / Legal Information Institute. Retrieved 24 June 2022.
39. ^ "issue preclusion". LII / Legal Information Institute. Retrieved 20 October 2022.
40. ^ Brian A. Blum, Contracts, 4th ed. (New York: Wolters Kluwer, 2007), 37.
41. ^ Starger, Colin (2013). "The Dialectic of Stare Decisis Doctrine". In Peters, Christopher J. (ed.). Precedent in the United States Supreme Court. Dordrecht: Springer Science+Business Media. pp. 19–46. ISBN 978-94-007-7950-1. Available via SpringerLink.
42. ^ 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).
43. ^ 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).
44. ^ "Inhalt dieses Heftes". Rabels Zeitschrift für ausländisches und internationales Privatrecht (in German). 84 (2). Mohr Siebeck: 211. 2020. doi:10.1628/rabelsz-2020-0028. ISSN 0033-7250.
45. ^ Hodge, Patrick (28 October 2019), "The scope of judicial law-making in the common law tradition" (PDF), Rabels Zeitschrift für ausländisches und internationales Privatrecht, Hamburg, Germany: Max-Planck-Institut für ausländisches und internationales Privatrecht, retrieved 27 January 2023, "Judge-made law is an independent source of law in common law systems."
46. ^ Elizabeth Y. McCuskey, Clarity and Clarification: Grable Federal Questions in the Eyes of Their Beholders, 91 NEB. L. REV. 387, 427-430 (2012).
47. ^ James H. Fowler and Sangick Jeon, "The Authority of Supreme Court Precedent", Social Networks (2007), doi:10.1016/j.socnet.2007.05.001
48. ^ Hasnas, John. Hayek, the Common Law, and Fluid Drive (PDF). Vol. 1\. NYU Journal of Law & Liberty. pp. 92–93. Archived from the original (PDF) on 24 January 2015. Retrieved 4 June 2012.
49. ^ a b c d e Congressional Research Service (24 September 2018). "The Supreme Court's Overruling of Constitutional Precedent". EveryCRSReport.com. Archived from the original on 16 October 2020. Retrieved 3 November 2020.
50. ^ a b "Vasquez v. Hillery, 474 U.S. 254 (1986), at 266". Justia US Supreme Court Center. 14 January 1986. Retrieved 3 November 2020.
51. ^ "Table of Supreme Court Decisions Overruled by Subsequent Decisions". constitution.congress.gov. Library of Congress. Archived from the original on 31 October 2020. Retrieved 3 November 2020.
52. ^ Congressional Research Service (24 September 2018). "The Supreme Court's Overruling of Constitutional Precedent; see Footnotes 43-44, 47, 48 and 69". EveryCRSReport.com. Archived from the original on 16 October 2020. Retrieved 3 November 2020.
53. ^ Central Green Co. v. United States, 531 U.S. 425 (2001), quoting Humphrey's Executor v. United States, 295 U. S. 602, 627 (1935).
54. ^ Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–407, 410 (1932) (Brandeis, J., dissenting).
55. ^ Congressional Research Service,Supreme Court Decisions Overruled by Subsequent Decision Archived 13 January 2012 at the Wayback Machine (1992).
56. ^ "FindLaw | Cases and Codes". Caselaw.lp.findlaw.com. Retrieved 2 November 2012.
57. ^ See O'Gilvie v. United States, 519 U.S. 79, 84 (1996).
58. ^ a b Starger, Colin (2013). "The Dialectic of Stare Decisis Doctrine". In Peters, Christopher J. (ed.). Precedent in the United States Supreme Court. Dordrecht: Springer Science+Business Media. pp. 19–46. ISBN 978-94-007-7950-1. Available via SpringerLink.
59. ^ "June Medical Services L.L.C. v. Russo". Retrieved 29 June 2020.
60. ^ "R v G (2003) – recklessness in criminal law". www.lawteacher.net. Retrieved 7 June 2019.
61. ^ Saha, Tushar Kanti (2010). Textbook on Legal Methods, Legal Systems and Research. Universal Law Publishing. ISBN 9788175348936.
62. ^ Martin, Jacqueline (2005). The English Legal System (4th ed.), p. 25. London: Hodder Arnold. ISBN 0-340-89991-3.
63. ^ "R v Maginnis [1987] UKHL 4 (05 March 1987)". Bailii.org. Retrieved 16 March 2022.
64. ^ "The Golden Rule". Lawade.com. 22 March 2015. Archived from the original on 29 March 2018. Retrieved 29 March 2018.
65. ^ "Part E - The rules of statutory interpretation - The golden rule". Labspace. Retrieved 11 December 2012.
66. ^ See, e.g., State Oil Co. v. Khan, 93 F.3d 1358 (7th Cir. 1996), in which Judge Richard Posner followed the applicable Supreme Court precedent, while harshly criticizing it, which led the Supreme Court to overrule that precedent in State Oil Co. v. Khan, 522 U.S. 3 (1997); see also the concurring opinion of Chief Judge Walker in National Abortion Federation v. Gonzalez, 437 F. 3d 278 (2d Cir. 2006).
67. ^ See, e.g., Hilton vs. Carolina Pub. Rys. Comm'n., 502 U.S. 197, 202, 112 S. Ct. 560, 565 (1991)("we will not depart from the doctrine of stare decisis without some compelling justification").
68. ^ "The Supreme Court in the 21st Century". American Academy of Arts & Sciences. March 2013. Retrieved 7 June 2019.
69. ^ A Matter of Interpretation.[full citation needed]
70. ^ Thomas, Clarence (1991). [U.S.] Senate Confirmation Hearings. qtd. by Jan Crawford Greenburg on PBS (June 2003) Accessed 8 January 2007 UTC.
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72. ^ Nelson, Caleb (2001). "Stare Decisis and Demonstrably Erroneous Precedent". Virginia Law Review. 87 (1): 1–84. doi:10.2307/1073894. JSTOR 1073894.
73. ^ Juratowitch, Ben (2008). Retroactivity and the Common Law. Oxford: Hart Publishing. p. 41\. ISBN 9781847314109. Retrieved 29 September 2020.
74. ^ Wacks, Raymond (2015). Understanding Jurisprudence: An Introduction to Legal Theory (4th ed.). Oxford: Oxford University Press. p. 74\. ISBN 9780198723868. Retrieved 30 September 2020.
75. ^ Trotter, Michael H. (1997). Profit and the Practice of Law: What's Happened to the Legal Profession. Athens, GA: University of Georgia Press. pp. 161–163. ISBN 0-8203-1875-2.
76. ^ McClellan, James (1969). "The Doctrine of Judicial Democracy" (PDF). Modern Age. 14 (1). Chicago: 19–35. Archived from the original (PDF) on 1 March 2017.
77. ^ Berland, David (2011). "Stopping the Pendulum: Why Stare Decisis Should Constrain the Court from Further Modification of the Search Incident to Arrest Exception" (PDF). University of Illinois Law Review. 2011: 695–740.
78. ^ "Legal skills and debates in Scotland". OpenLearn. Retrieved 7 June 2019.

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