The doctrines of stare decisis and precedent are the foundations of our American common law system. Stare decisis is a doctrine used in all court cases and with all legal issues. Stare decisis is the doctrine that obligates courts to look to precedent when making their decisions. Common Law Legal System Stare Decisis. The Meaning of Precedent Generally“precedent” literally means something that hashappened. In common law legal systems, precedent is a principle or rule established in a previous legal . In federal or multijurisdictional law systems, conflicts may exist between the various . Binding precedent relies on the legal principle of stare decisis. Stare .. Justice McHugh of the High Court of Australia in relation to precedents.
Common patterns for dissenting opinions include: 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. Treatises, restatements, law review articles[ 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. 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and give them whatever persuasive weight the English court sees fit, even though these other decisions are not binding precedent.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. In the United States, in the late 20th and early 21st centuries, the concept of a U.
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.
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 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. 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. Depublication is the power of a court to make a previously published order or opinion unpublished.
Litigation that is settled out of court generates no written decision, thus has no precedential effect. As one practical effect, the U. Department of Justice settles many cases against the federal government simply to avoid creating adverse precedent. 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: 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.
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. Exceptions are limited to three "exceptional circumstances: This principle is called " law of the case ".
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. 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 Latinas primae impressionis is an issue where the parties disagree on what the applicable law is, and there is no prior binding authorityso 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 jurisdictionscommentaries and articles by legal scholars, and the court's own logic and sense of justice.
Contrasting role of case law in common law, civil law, and mixed systems [ edit ] 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 dictawhich have persuasive authority but are not technically binding.
By contrast, decisions in civil law jurisdictions are generally very short, referring only to statutes.
Precedent - Wikipedia
The reason for this difference is that these civil law jurisdictions apply legislative positivism — a form of extreme 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.
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 constanteaccording 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 Stateis 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.
Stare decisis and precedent in the Supreme Court (video) | Khan Academy
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.
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 Swedenfor instance, case law arguably plays a more important role than in some of the continental civil law systems. Mixed or bijuridical systems[ edit ] Some mixed systems, such as Scots law in ScotlandSouth-African lawand the law of Quebec and Louisianado not fit into the civil vs.
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.
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. Court formulations[ edit ] Justice Louis Brandeis, in a heavily footnoted dissent to Burnet v.
Stare decisis is not 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.
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.
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.
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. 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. During the formative period of the common lawthe 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 does 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. As the United States Supreme Court has put it: 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.
Stare decisis and precedent in the Supreme Court
This is strikingly true of cases under the due process clause. Supreme Court reversed itself in about cases. Supreme Court has further explained as follows: 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. AllwrightU. Special features of the English legal system include the following: 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 It enabled the House of Lords to adapt English law to meet changing social conditions.
However, the Practice Statement has been seldom applied by the House of Lords, usually only as a last resort. And no matter how unbiased and no matter how objective they try to be, they still bring to the table their views and their experiences.
And so even though this seems like a very clean process, there's definitely a large degree of subjectivity here. And because the executive branch, in particular the president, can appoint Supreme Court justices, there's definitely examples in history of changes in politics having long-term effects on changes in the Supreme Court.
For example, a significant case of overturning precedent happens from to Inyou have the Plessy v. Ferguson case that we covered in several other videos, where the then Supreme Court rules its laws that involve segregation are okay. But then you fast-forward almost 60 years, and then the Supreme Court then, in Brown v.
Board of Education in Topeka, ruled that no, separate but equal is not constitutional, that segregation is not okay. And this was influenced by this idea of, over time, you had presidents who were able to make judicial appointments to the Supreme Court as members of the Supreme Court died or retired, and went through a Senate confirmation process, and then these justices have life tenure. They can stay on the Supreme Court until they pass away or until they decide to retire.
And so many historians would say that this overturning of precedent was due to a change in politics from the s through the early s. When you have several terms of FDR and then you have President Truman, who appointed justices to the Supreme Court that would eventually rule on Brown v. Board of Education, and they would be more pro-civil rights.
And what's interesting about this is even though presidents try to appoints folks who they believe would maybe vote the way they would or have similar views, many times, it doesn't always work that way. For example, President Eisenhower, who was a Republican, appointed Justice Earl Warren, who was a Republican governor of California, but Warren ended up being famous for taking more liberal stances than not, including on Brown v.