Precedent, Stare DecisisAnd

Its Usage

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

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

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

Sometimes called Authority

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 PresentHistorically, 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.

Year Book of Edward III (London: Robert Redman, 1534)

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

Les Reports de Edward Coke. (London: Thomas Wight, 1600)

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.

Ephraim Kirby, Reports of Cases Adjudged in the Superior Court of the State of Connecticut, from the Year 

1785, to May 1788.

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

PRECEDENT

Arguments Against Precedent

Inequality

Rigidity

Unpredictability

Inefficiency

Separation of Powers?

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

PRECEDENT

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

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’.

Common Law

An Introduction toUsing Precedent

Non-Legal Example: The Grocer

Grocer places apples in store front window hoping to attract customers.

Grocer places potato in the back of the store because he thinks they won't draw customers into the store and thus limited window space should not be wasted on them.

Grocer leaves. Employee realizes he forgot to ask Grocer where lemon should go.

How should we go about trying to answer this questions?

Things to Consider

Is there really a “correct” answer here?

What is the “issue”?

Is there a general standard (“policy”) that the grocer has applied to what should appear in the window?

What does the employee have at his disposal to help him decide where to put the tomato?

Is this really enough to make a good decision? Is there something missing?

Using Fruits and Vegetables as Review

Appellate Review

Majority Opinions

Concurring Opinions

Dissenting Opinions

Case Law Reasoning

Prior cases (precedent) are used to predict, explain or justify the outcome of an undecided case.

NOTE – some argue that this can also be referred to as analogical reasoning and is a form of deductive reasoning.

EXAMPLE – man sues ferry company for losing his luggage on an overnight trip.

No case law or statutes concerning lost luggage on ferries, but . . . . .

Similar Cases

The Hotel Case

Hotel proprietor was found liable for guest's stolen luggage.

Contract of hospitality involved keeping guest's luggage safe.

The Train Case

Train found not liable for passenger's lost luggage.

Despite fact that passenger “rented” space to sleep, court found contract was primarily for travel, not lodging.

Analogy: Using Precedent

the judge chooses some non-identical features of the precedent as being sufficiently similar to the current case to warrant the same outcome.

NOTE: we are not so much talking about stare decisis.

The question here isn't really what's binding, but what past cases can help the judge decide the current case.

Characteristics of Analogical Reasoning

Facts play an important role.

They are used to both draw analogies to past cases and distinguish past cases from the current one.

It said that decisions using this reasoning are narrow:

“the law develops case by case, the Court in each case deciding so much as is necessary to dispose of the case before it.”

Whereas cases using inductive reasoning are said to create broader propositions of law.

Applying Multiple Cases: Synthesis

Purpose – to find collective meaning of multiple cases that have precedential value.

Rules of law are clarified through the holdings of multiple cases

Involves more than listing cases

GOAL - make a reliable prediction (memo) or convincing arguments (brief) about how the law applies to a new set of facts.

When Do We Synthesize

No express definition of an element or term

Rule in precedent not expressly stated

Definition of term or element is vague

Cases analogized don’t address all the determinative facts

Several cases are all relevant in some way

Why Do We SynthesizeRemember, precedent operates in a fact sensitive manner:

as facts change slightly, so do the rules created by case law.

if you look at only one case, you won't fully appreciate or understand the area of law being addressed by the precedent.

After reviewing several cases, we need to communicate the standards the court will apply in a clear, concise manner.

Case Synthesis: The Grocer

Green Apple – placed in front because of its vibrant color.

Banana – despite vibrant color, placed in back of store because of grocer custom that anything placed in window must last for at least a week and a banana will rot within the week due to sun light.

Orange – Goes in back because only something that can be eaten immediately without any preparation goes in the front.

Eggplant – Goes in the back because it is not a fruit.