Chapter 3
Precedent

In legal systems based on common law, a precedent, or authority, is a principle or rule established in a previous legal case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar issues or facts. Common law legal systems place great value on deciding cases according to consistent principled rules so that similar facts will yield similar and predictable outcomes, and observance of precedent is the mechanism by which that goal is attained. The principle by which judges are bound to precedents is known as stare decisis. Black's Law Dictionary defines “precedent” as a “rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases.”Common law precedent is a third kind of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and delegated legislation (in U.K. parlance) or regulatory law (in U.S. parlance) (regulations promulgated by executive branch agencies).

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. While all decisions are precedent (though at varying levels of authority as discussed throughout this article), some become “leading cases” or “landmark decisions” that are cited especially often.

Principle

Stare decisis (Anglo-Latin ) 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.” In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters. The principle of stare decisis can be divided into two components.

The first is the rule that 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 are obligated to follow. The second is the principle that a court should not overturn its own precedent unless there is a strong reason to do so and should be guided by principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one that courts can and do ignore occasionally.

Case Law in Common Law Systems

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

Generally speaking, higher courts do not have direct oversight over day-to-day proceedings in lower courts, in that they cannot reach out on their own initiative (sua sponte) at any time to reverse or overrule judgments of the lower courts. Normally, the burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher courts. If a judge acts against precedent and the case is not appealed, the decision will stand.

A lower court may not rule against a binding precedent, even if the lower court feels that the precedent is unjust; the lower court may only express the hope that a higher court or the legislature will reform the rule in question. 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 judgment 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 non-binding 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 multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts. Sometimes these differences may not be resolved and it may be necessary to distinguish how the law is applied in one district, province, division or appellate department. 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, in order 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.

Where there are several members of a court, there may be one or more judgments given; only the ratio decidendi of the majority can constitute a binding precedent, but all may be cited as persuasive, or their reasoning may be adopted in argument. Quite apart from the rules of precedent, the weight actually given to any reported judgment may depend on the reputation of both the court and the judges.

Categories and Classifications of Precedent, and Effect of Classification

Verticality

Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. The inferior courts conduct almost all trial proceedings. The inferior courts are bound to obey precedent established by the appellate court for their jurisdiction, and all supreme court precedent.

Under 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.

An Intermediate state appellate court is generally bound to follow the decisions of the highest court of that state.

The application of the doctrine of stare decisis from a superior court to an inferior court is sometimes called vertical stare decisis.

Horizontality

The idea that a judge is bound by (or at least should respect) decisions of earlier judges of similar or coordinate level is called horizontal stare decisis.

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 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. 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.

When a court binds itself, this application of the doctrine of precedent is sometimes called horizontal stare decisis. The state of New York has a similar appellate structure as it is divided into four appellate departments supervised by the final New York Court of Appeals. Decisions of one appellate department are not binding upon another, and in some cases the departments differ considerably on interpretations of law.

Federalism and Parallel State and Federal Courts

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.

• 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. 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.

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.

Binding Precedent

Precedent that must be applied or followed is known as binding precedent (alternately metaphorically precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor findings of law made by a higher court that is within the appeals path of cases the court hears. In state and federal courts in the United States of America, jurisdiction is often divided geographically among local trial courts, several of which fall under the territory of a regional appeals court. All appellate courts fall under a highest court (sometimes but not always called a “supreme court”). By definition, decisions of lower courts are not binding on courts higher in the system, nor are appeals court decisions binding on local courts that fall under a different appeals court. Further, courts must follow their own proclamations of law made earlier on other cases, and honor rulings made by other courts in disputes among the parties before them pertaining to the same pattern of facts or events, unless they have a strong reason to change these rulings (see Law of the case re: a court's previous holding being binding precedent for that court).

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.

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.

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 hierarchy structures similar to that of the federal system.

The U.S. Supreme Court has final authority on questions about the meaning of federal law, including the U.S. Constitution. For example, when the Supreme Court says that the First Amendment applies in a specific way to suits for slander, then every court is bound by that precedent in its interpretation of the First Amendment as it applies to suits for slander. If a lower court judge disagrees with a higher court precedent on what the First Amendment should mean, the lower court judge must rule according to the binding precedent. Until the higher court changes the ruling (or the law itself is changed), the binding precedent is authoritative on the meaning of the law.

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.

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 (1966 Practice Statement (Judicial Precedent) by Lord Gardiner L.C.)”.

Binding Precedent in English Law

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 Scotland and many countries throughout the world, 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. 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.

Super Stare Decisis

“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, 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. 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. 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.” 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.

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

Persuasive Precedent

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.

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.

Lower Courts

A lower court's opinion may be considered as persuasive authority if the judge believes they have applied the correct legal principle and reasoning.

Higher Courts in Other Circuits

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.

Horizontal Courts

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.

Statements Made in Obiter Dicta

Courts may consider obiter dicta in opinions of higher courts. 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 that a particular legal argument is weak and may even warrant sanctions if repeated.

Dissenting Opinions

A case decided by a multi-judge 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:

• 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).

Treatises, Restatements, Law Review Articles

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

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 (for example 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.

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.

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.

Nonprecedential Decisions: Unpublished Decisions, Non-publication and Depublication, Noncitation Rules

Non-publication 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 case 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.

Litigation that is settled out of court generates no written decision, and 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.

Res Judicata, Claim Preclusion, Collateral Estoppel, Issue Preclusion, Law of the Case

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

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 whether 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

Once a case is finally decided, any issues decided in the previous case may be binding against the party that 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 re-prove 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 re-proved. Again, there are limits and exceptions on this principle. The principle is called collateral estoppel or issue preclusion.

Law of the Case

Within a single case, once there's 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”.

Splits, Tensions

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

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

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.

Matter of First Impression

A matter of first impression (known as primae impressionis in Latin) is a legal case in which there is no binding authority on the matter presented. Such a case can set forth a completely original issue of law for decision by the courts. A first impression case may be a first impression in only a particular jurisdiction. In that situation, courts will look to holdings of other jurisdictions for persuasive authority.

In the latter meaning, the case in question cannot be decided through referring to and/or relying on precedent. Since the legal issue under consideration has never been decided by an appeals court and, therefore, there is no precedent for the court to follow, the court uses analogies from prior rulings by appeals courts, refers to commentaries and articles by legal scholars, and applies its own logic. In cases of first impression, the trial judge will often ask both sides' attorneys for legal briefs.

In some situations, a case of first impression may exist in a jurisdiction until a reported appellate court decision is rendered.

Application

Development

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 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.

United States Legal System

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.”

In the United States Supreme Court, the principle of stare decisis is most flexible in constitutional cases:

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. ... But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. ... This is strikingly true of cases under the due process clause.

— Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406-407, 410 (1932) (Brandeis, J., dissenting).

For example, in the years 1946-1992, the U.S. Supreme Court reversed itself in about 130 cases. The U.S. Supreme Court has further explained as follows:

When 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).

The United States Supreme 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”.

English Legal System

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

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.

However, the Practice Statement has been seldom applied by the House of Lords, usually only as a last resort. As of 2005, the House of Lords has rejected its past decisions no more than 20 times. They are reluctant to use it because they fear 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 pretention to infallibility. If a serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the better.” 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

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.

Rules of 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 U.K.

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 U.K. 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), 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. 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. The court must find genuine difficulties before it declines to use the literal rule. There are two ways in which the golden rule can be applied: the narrow method, and the broad method. Under the narrow method, when there are apparently two contradictory meanings to a word used in a legislative provision or it is ambiguous, the least absurd is to be used. For example, in Adler v. George (1964), the defendant was found guilty under the Official Secrets Act of 1920. The act said 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 a prohibited place but was actually in a prohibited place. The court chose not to accept the wording literally. Under the broad method, the court may reinterpret the law at will when it is clear that there is only one way to read the statute. This occurred in Re Sigsworth (1935) where a man who murdered his mother was forbidden from inheriting her estate, despite a statute to the contrary.

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.

Statutory Interpretation in the United States

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.

• “In interpreting a statute a court should always turn to one cardinal canon before all others. ... Courts 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, 787-788 (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.

Exercises

I. Please match the terms on the left with the definitions on the right.Write the term number in the blank.

II. Certiorari (leave to appeal), Verbs of Permission and Refusal

Even though two or more terms are regarded as synonymous (having the same or a similar meaning) in English, they may not always be substituted for one another. For example, a noun may only collocate or combine with a specific verb but not its synonym. Look at the legal term certiorari, for example.

Which of the following verbs of permission do you think can combine with certiorari in the example sentence? If you're only becoming familiar with legal English, you may not know the answers, just make your best guess.

permitted granted allowed gave agreed to

One month ago, this Court______certiorari to resolve the issues whether the execution of the presently mentally incompetent offends the English Amendment, and, if it does, what process is due a condemned prisoner who might lack any understanding of the penalty he faces.

Granted almost always combines with certiorari. The English Language Institute, University of Michigan (ELI-UM) legal English corpus contains 30 examples of grant certiorari and no examples of other verbs of permission that collocate or combine with certiorari. Allowed and permitted also combine with certiorari, but rarely.

What about the opposite of grant certiorari? Which of the verbs of refusal that follow collocate with certiorari in the sentence on page 11? Given that certiorari generally collocates with only one verb of permission, is it logical to suppose that it also collocates primarily with one verb of refusal? If you have access to a legal corpus, you may wish to search it for the answer. You can also go the Google Scholar and type in each verb plus certiorari, as in “refuse certiorari”. Otherwise, make your best guess.

refuses rejects denies declines

Relying on Ninth Circuit precedent, the district court finds that Nanosoft's copying is fair use and grants summary judgment in favor of Nanosoft. The Ninth Circuit affirms, and the Supreme Court______certiorari.

Leave to appeal is a synonym for certiorari. Is it likely to combine with the same verbs?

By the way, how do you pronounce certiorari? 9dBxI2ju6QXHFm5vyVwhoECya2DDRhHpUJPVeLU/IoB877mCuLAhVrmzo44JCcWy