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Precedent & Stare Decisis


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  • The second symposium of “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America” is scheduled for October 25 - 26, 2012 at Loyola Law School in Los Angeles, California. Learn more @
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Precedent & Stare Decisis

  1. 1. Common Law Legal System Stare Decisis
  2. 2. 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
  3. 3. PrecedentThe legal principle or rule created by a courtwhich guides judges in subsequent cases withsimilar issues or facts.Sometimes called AuthorityTo serve as precedent for a pending case, a priordecision must have a similar question of law andfactual situation.
  4. 4. 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 law legislatures ability to make the law
  5. 5. Using the Past in the PresentHistorically, various judicial systems have usedpast decisions to help decide present cases.But only Common Law requires judges tofollow/use past decisions, even those with whichthey disagree.
  6. 6. The Origins of Stare DecisisFew records of case decisions in early commonlaw.Judges and lawyers brought knowledge andexperience into decision making process. Thus, past cases were used, but not formally Certainly not binding
  7. 7. Documenting CasesBy mid-1400s the Year Book started setting forthmore details of the cases decided by the commonlaw courts.Yet judges did NOT feel they were BOUND tofollow past decisions.
  8. 8. The Growing Role of PrecedentLate 1500s/Early 1600s – precedent onprocedural matters.Influence of Edward Coke The Reports Use of Precedent to curb power of King and sometimes Parliament.But still no binding precedent
  9. 9. Moving Toward Binding PrecedentIncreased quality of reports and need for certaintyin areas of law such as property and contracts.1800s saw acceptance of binding precedentFrom principles of adhering to decisions to a setof rules.
  10. 10. Development in AmericaEarly courts ignored stare decisis1800s also saw a shift of attitude toward staredecisis in AmericaPrior decisions were presumptively binding.
  11. 11. Justifications for PrecedentEqualityJudicial EfficiencyPredictabilitySeparation of Powers
  12. 12. Arguments Against PrecedentInequalityRigidityUnpredictabilityInefficiencySeparation of Powers? Judge made law? Isnt lawmaking part of the legislative branch?
  13. 13. Quick Note about StatutesCourts 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 interpretingstatutes as well as common law.
  14. 14. 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 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.
  15. 15. 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.
  16. 16. English Court System
  17. 17. Stare Decisis in the U.S. TodayAll lower courts are bound by higher courtdecisions.U.S. Supreme Court is not bound by its owndecisions.
  18. 18. U.S. Federal Courts Supreme Court Court of Appeals1 2 3 4 5 6 7 8 9 10 11 DC FED E.D. MI W.D. MI N.D OH S.D. OH E.D. KY W.D. KY E.D. TN M.D. TN W.D. TN
  19. 19. Michigan Courts Michigan Supreme Court Court of Appeals (28 judges, in panels) Circuit (County) Courts 57 circuits District Courts 104 districts, notevery circuit has districts
  20. 20. Keeping it in PerspectiveNot all decisions create binding precedent.Most decisions are made by lower courts.Only published decisions form binding precedent!
  21. 21. 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.
  22. 22. 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!
  23. 23. The Binding Element of PrecedentEvery 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 #3Future parties in lower courts will care about #2 And this is the only part that is binding on future parties.
  24. 24. In SummaryTo work with binding precedent one mustunderstand: 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
  25. 25. Avoiding PrecedentTo ways to avoid precedent: Overrule (few courts have this option) Distinguish Disapproving Precedent court can ignore precedent with hope that higher court will overrule (change) the precedent.
  26. 26. OverrulingRenovativeCorrectiveLegislative
  27. 27. 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)
  28. 28. 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’.