Stare Decisis

Common Law Legal System

The Meaning of Precedent Generally

“precedent” literally means something that has happened before

In ordinary English, “precedent” has come to mean an event which defines a standard

“Unprecedented” is something that is uncommon or well beyond standard.

“Spam levels run to unprecedented heights”

recent headline from PC Magazine

Precedent

The legal principle or rule created by a court which guides judges in subsequent cases with similar issues or facts.

Sometimes called Authority

To serve as precedent for a pending case, a prior decision must have a similar question of law and factual situation.

Stare Decisis

Latin for “to stand by things decided” (roughly)

the notion that prior court decisions must be recognized as precedents

Civil Law Systems believe stare decisis interferes:

with judge's ability to interpret the law

legislature's ability to make the law

Using the Past in the Present

Historically, various judicial systems have used past decisions to help decide present cases.

But only Common Law requires judges to follow/use past decisions, even those with which they disagree.

The Origins of Stare Decisis

Few records of case decisions in early common law.

Judges and lawyers brought knowledge and experience into decision making process.

Thus, past cases were used, but not formally

Certainly not binding

Documenting Cases

By mid-1400s the Year Book started setting forth more details of the cases decided by the common law courts.

Yet judges did NOT feel they were BOUND to follow past decisions.

The Growing Role of Precedent

Late 1500s/Early 1600s – precedent on procedural matters.

Influence of Edward Coke

The Reports

Use of Precedent to curb power of King and sometimes Parliament.

But still no binding precedent

Moving Toward Binding Precedent

Increased quality of reports and need for certainty in areas of law such as property and contracts.

1800s saw acceptance of binding precedent

From principles of adhering to decisions to a set of rules.

Development in America

Early courts ignored stare decisis

1800s also saw a shift of attitude toward stare decisis in America

Prior decisions were presumptively binding.

Justifications for Precedent

Equality

Judicial Efficiency

Predictability

Separation of Powers

Arguments Against Precedent

Inequality

Rigidity

Unpredictability

Inefficiency

Separation of Powers?

Judge made law? Isn't lawmaking part of the legislative branch?

Quick Note about Statutes

Courts acknowledge that statutes override “judge-made law.”

Exception – Court interpretation of U.S. Constitution.

Exception – Court interpretation of Human Rights Act and EU law (U.K.).

Stare decisis applies to rulings interpreting statutes as well as common law.

Two Principles

Vertical Stare Decisis – decision (precedent) made by higher court is binding on lower court.

Horizontal Stare Decisis – court binds itself to prior decisions.

Example – if Supreme Court believed it could not reverse prior Supreme Court decisions.

Example – In U.S., panel of judges in a particular appellate “circuit” is bound by decision of panel within that circuit.

Stare Decisis in the U.K. Today

Since 1966, House of Lords no longer bound by own decisions.

More strictly applied than U.S.

Higher court decisions are BINDING on lower courts.

English Court System

Stare Decisis in the U.S. Today

All lower courts are bound by higher court decisions.

U.S. Supreme Court is not bound by its own decisions.

Supreme Court

1 4 6532 7 8 9 10 11 DC FED

Court of Appeals

W.D. MI N.D OHE.D. MIW.D. KYE.D. KYS.D. OH

M.D. TN W.D. TNE.D. TN

U.S. Federal Courts

Michigan CourtsMichigan

Supreme Court

Court of Appeals(28 judges, in panels)

Circuit (County) Courts57 circuits

District Courts104 districts, not

every circuit has districts

Keeping it in Perspective

Not all decisions create binding precedent.

Most decisions are made by lower courts.

Only published decisions form binding precedent!

Precedent in German Courts?

§ 31 BVerfGG

(1) Die Entscheidungen des Bundesverfassungs-gerichts binden die Verfassungsorgane des Bundes und der Länder sowie alle Gerichte und Behörden. (2) In den Fällen des § 13 Nr. 6, 11, 12 und 14 hat die Entscheidung des Bundesverfassungsgerichts Gesetzeskraft...

Administrative Courts

Not all rules used by these courts are statutory.

Intro to Using Precedent

Few disputes have exactly the same facts or legal issues.

Job of attorney's to convince judge that past decision is similar factually and legal issues

Underlying rationale of past decision may help to determine it's precedential value.

This is not an exact science!

The Binding Element of Precedent

Every Court Decision Must Contain:

(1) Findings of material facts

(2) Statements of principles of law applicable to the legal issues raised by the facts AND

(3) A judgment (or judgments) based upon the application of the legal principles to the facts.

The parties care about #3

Future parties in lower courts will care about #2

And this is the only part that is binding on future parties.

In Summary

To work with binding precedent one must understand:

how to find the legal principle that formed the Ratio

how to determine what facts are relevant to the decision

the level of the court that made the rule/ratio and whether the court you are in is bound by it

Avoiding Precedent

To ways to avoid precedent:

Overrule (few courts have this option)

Distinguish

Disapproving Precedentcourt can ignore precedent with hope that higher court will overrule (change) the precedent.

Overruling

Renovative

Corrective

Legislative

Overruling Precedent

Related principles of law have developed making old rule hollow (useless).

Facts have changed or are different so that old rule is no longer justified.

Prior judicial ruling was clear error and enforcement is nearly impossible.

Old rule is no longer workable.Source: Planned Parenthood v. Casey (1992)

Distinguishing

identifying aspects of a previous decision that would make inappropriate the use of its ratio in the present case

Sometimes this means narrowing the ratio/holding of a case to its fact-based result, referred to as ‘limiting a case to its facts’.