Precedent

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In law, a precedent or authority is a legal case establishing a principle or rule that a court may need to adopt when deciding subsequent cases with similar issues or facts. The term may also refer to the collective body of case law that a court should consider when interpreting the law. When a precedent establishes an important legal principle, or represents new or changed law on a particular issue, that precedent is often known as a landmark decision.

Contents 1 Mandatory and persuasive precedent 2 Custom and case law 3 Actual court formulations of the doctrine 4 Criticism 5 See also 6 Notes

[edit] Mandatory and persuasive precedent

Main articles: Binding precedent and Persuasive precedent

A precedent that must be applied or followed is known as a binding precedent, mandatory precedent or binding authority. Under the doctrine of stare decisis, a lower court must have regard to mandatory precedent when deciding a case. Mandatory precedent is usually created by superior courts and is binding on lower courts. By definition the decisions of lower courts are not binding on superior courts, although superior courts may often adopt the legal reasoning of lower courts.

In extraordinary circumstances a superior court may overturn or overrule mandatory precedent, but will often attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent in any event. In a case of first impression there is no mandatory precedent for the court to consider.

A precedent that is not mandatory but that is useful or relevant is known as persuasive precedent or advisory precedent. In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have previously dealt with similar issues. Persuasive precedent may become binding through the adoption of the persuasive precedent by a superior court.

[edit] Custom and case law

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

The other type of precedent is case law. This type of precedent is granted more or less weight in the deliberations of a court according to a number of factors. Most important is whether the precedent is "on point," that is, does it deal with a circumstance identical or very similar to the circumstance in the instant case? Second, when and where was the precedent decided? A recent decision in the same jurisdiction as the instant case will be given great weight. Next in descending order would be recent precedent in jurisdictions whose law is the same as local law. Least weight would be given to precedent that stems from dissimilar circumstances, older cases that have since been contradicted, or cases in jurisdictions that have dissimilar law.

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.

[edit] Actual court formulations of the doctrine

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.^[1]

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. [ . . . U]nder 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.^[2]

[edit] Criticism

One critique in connection with the use of precedent has been made in a controversial 1997 book by attorney Michael Trotter. He blamed the tendency of American lawyers to cite both binding and persuasive authority as one of the major factors 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.^[3]

[edit] See also

• Binding precedent
• Case citation
• Persuasive precedent
• Stare decisis

[edit] Notes

1. ^ 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).
2. ^ United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).
3. ^ 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.