Precedent, Stare DecisisAndIts UsageCommon Law Legal System
The Meaning of Precedent Generally“precedent” literally means something that hashappened beforeIn ordinary English, “precedent” has come to meanan event which defines a standard“Unprecedented” is something that is uncommon orwell beyond standard.“Spam levels run to unprecedented heights”recent headline from PC Magazine
PrecedentThe legal principle orrule created by a courtwhich guides judges insubsequent cases withsimilar issues and facts.To serve as precedentfor a pending case, aprior decision must havea similar question of lawand factual situation.Sometimes calledAuthority
Stare DecisisLatin for “to stand by things decided” (roughly)the notion that prior court decisions must berecognized as precedentsCivil Law Systems believe stare decisisinterferes:with judges ability to interpret the lawlegislatures ability to make the law
Using the Past in the PresentHistorically, variousjudicial systems haveused past decisions tohelp decide presentcases.But only CommonLaw requires judges tofollow/use pastdecisions, even thosewith which theydisagree.
The Origins of Stare DecisisFew records of casedecisions in earlycommon law.Judges and lawyersbrought knowledgeand experience intodecision makingprocess.Thus, past cases wereused, but not formallyCertainly not binding
Documenting CasesBy mid-1400s theYear Book startedsetting forth moredetails of the casesdecided by thecommon law courts.Yet judges did NOTfeel they wereBOUND to followpast decisions.Year Book of Edward III (London: Robert Redman, 1534)
The Growing Role of PrecedentLate 1500s/Early1600s – precedent onprocedural matters.Influence of EdwardCokeThe ReportsUse of Precedent tocurb power of Kingand sometimesParliament.But still no bindingprecedentLes Reports de Edward Coke. (London: Thomas Wight, 1600)
Moving Toward Binding PrecedentIncreased quality ofreports and need forcertainty in areas oflaw such as propertyand contracts.1800s saw acceptanceof binding precedentFrom principles ofadhering to decisionsto 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 AmericaEarly courts ignoredstare decisis1800s also saw a shiftof attitude toward staredecisis in AmericaPrior decisions werepresumptively binding.
Justifications for PrecedentEqualityJudicial EfficiencyPredictabilitySeparation of PowersPRECEDENT
Arguments Against PrecedentInequalityRigidityUnpredictabilityInefficiencySeparation of Powers?Judge made law? Isnt lawmaking part of thelegislative branch?PRECEDENT
Two PrinciplesVertical Stare Decisis – decision (precedent)made by higher court is binding on lower court.Horizontal Stare Decisis – court binds itself toprior decisions.Example – if Supreme Court believed it could notreverse prior Supreme Court decisions.Example – In U.S., panel of judges in a particularappellate “circuit” is bound by decision of panelwithin that circuit.
Stare Decisis in the U.K. TodaySince 1966, House of Lords no longer bound byown decisions.More strictly applied than U.S.Higher court decisions are BINDING on lowercourts.
Stare Decisis in the U.S. TodayAll lower courtsare bound byhigher courtdecisions.U.S. SupremeCourt is not boundby its owndecisions.
Supreme Court1 4 6532 7 8 9 10 11 DC FEDCourt of AppealsW.D. MI N.D OHE.D. MIW.D. KYE.D. KYS.D. OHM.D. TN W.D. TNE.D. TNU.S. Federal Courts
Michigan CourtsMichiganSupreme CourtCourt of Appeals(28 judges, in panels)Circuit (County) Courts57 circuitsDistrict Courts104 districts, notevery circuit has districts
Keeping it in PerspectiveNot 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 Bundesund der Länder sowie alle Gerichte und Behörden. (2)In den Fällen des § 13 Nr. 6, 11, 12 und 14 hat dieEntscheidung des BundesverfassungsgerichtsGesetzeskraft...Administrative CourtsNot all rules used by these courts are statutory.
Intro to Using PrecedentFew disputes have exactly the same facts or legalissues.Job of attorneys to convince judge that pastdecision is similar factually and legal issuesUnderlying rationale of past decision may help todetermine its precedential value.This is not an exact science!
The Binding Element of PrecedentEvery Court Decision Must Contain:(1) Findings of material facts(2) Statements of principles of law applicable to thelegal issues raised by the facts AND(3) A judgment (or judgments) based upon theapplication of the legal principles to the facts.The parties care about #3Future parties in lower courts will care about #2And this is the only part that is binding on futureparties.
In SummaryTo work with binding precedent one mustunderstand:how to find the legal principle that formed the Ratiohow to determine what facts are relevant to thedecisionthe level of the court that made the rule/ratio andwhether the court you are in is bound by it
Avoiding PrecedentTo ways to avoid precedent:Overrule (few courts have this option)DistinguishDisapproving Precedentcourt can ignore precedent with hope that higher court willoverrule (change) the precedent.
OverrulingRenovativeCorrectiveLegislativeRelated principles of law havedeveloped making old rulehollow (useless).Facts have changed or aredifferent so that old rule is nolonger justified.Prior judicial ruling was clearerror and enforcement is nearlyimpossible.Old rule is no longer workable.Source: Planned Parenthood v. Casey (1992)
Distinguishingidentifying aspects of a previous decision thatwould make inappropriate the use of its ratio inthe present caseSometimes this means narrowing theratio/holding of a case to its fact-based result,referred to as ‘limiting a case to its facts’.
Non-Legal Example: The GrocerGrocer places apples in store front windowhoping to attract customers.Grocer places potato in the back of the storebecause he thinks they wont draw customers intothe store and thus limited window space shouldnot be wasted on them.Grocer leaves. Employee realizes he forgot to askGrocer where lemon should go.How should we go about trying to answer thisquestions?
Things to ConsiderIs there really a “correct” answer here?What is the “issue”?Is there a general standard (“policy”) that thegrocer has applied to what should appear in thewindow?What does the employee have at his disposal tohelp 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 ReviewAppellate ReviewMajority OpinionsConcurring OpinionsDissenting Opinions
Case Law ReasoningPrior cases (precedent) are used to predict,explain or justify the outcome of an undecidedcase.NOTE – some argue that this can also bereferred to as analogical reasoning and is aform of deductive reasoning.EXAMPLE – man sues ferry company forlosing his luggage on an overnight trip.No case law or statutes concerning lost luggage onferries, but . . . . .
Similar CasesThe Hotel CaseHotel proprietor wasfound liable for guestsstolen luggage.Contract of hospitalityinvolved keeping guestsluggage safe.The Train CaseTrain found not liablefor passengers lostluggage.Despite fact thatpassenger “rented” spaceto sleep, court foundcontract was primarilyfor travel, not lodging.
Analogy: Using Precedentthe judge chooses some non-identical features ofthe precedent as being sufficiently similar to thecurrent case to warrant the same outcome.NOTE: we are not so much talking about staredecisis.The question here isnt really whats binding, butwhat past cases can help the judge decide the currentcase.
Characteristics ofAnalogical ReasoningFacts play an important role.They are used to both draw analogies to past cases anddistinguish past cases from the current one.It said that decisions using this reasoning arenarrow:“the law develops case by case, the Court in each casedeciding so much as is necessary to dispose of thecase before it.”Whereas cases using inductive reasoning are said tocreate broader propositions of law.
Applying Multiple Cases: SynthesisPurpose – to find collective meaning ofmultiple cases that have precedential value.Rules of law are clarified through the holdingsof multiple casesInvolves more than listing casesGOAL - make a reliable prediction (memo) orconvincing arguments (brief) about how thelaw applies to a new set of facts.
When Do We SynthesizeNo express definition of an element or termRule in precedent not expressly statedDefinition of term or element is vagueCases analogized don’t address all thedeterminative factsSeveral cases are all relevant in some way
Why Do We SynthesizeRemember, precedent operates in a fact sensitivemanner:as facts change slightly, so do the rules created bycase law.if you look at only one case, you wont fullyappreciate or understand the area of law beingaddressed by the precedent.After reviewing several cases, we need tocommunicate the standards the court will apply ina clear, concise manner.
Case Synthesis: The GrocerGreen Apple – placed in front because of itsvibrant color.Banana – despite vibrant color, placed in back ofstore because of grocer custom that anythingplaced in window must last for at least a weekand a banana will rot within the week due to sunlight.Orange – Goes in back because only somethingthat can be eaten immediately without anypreparation goes in the front.Eggplant – Goes in the back because it is not afruit.