Categories and classifications of precedent, and effect of classification
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 setting by the appellate court for their jurisdiction, and all supreme court precedent.
The Supreme Court of California's explanation of this principle is that
[u]nder 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 lets 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 if 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. this is the not their function to try to overrule decisions of a higher court.
An Intermediate state appellate court is broadly bound to follow the decisions of the highest court of that state.
The a formal request to be considered for a position or to be permits to do or have something. of the doctrine of stare decisis from a higher court or a court superior to those courts inferior to it or lower in the tribunal hierarchy is sometimes called vertical stare decisis.
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 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 a formal request to be considered for a position or to be allowed to do or have something. of the doctrine of precedent is sometimes called horizontal stare decisis. The state of New York has a similar appellate layout as it is divided into four appellate departments supervised by theNew 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.
In federal systems the division between federal and state law may a object that is caused or produced by something else in complex interactions. In the United States, state courts are not considered inferior to federal courts but rather equal a parallel court system.
In practice, however, judges in one system will almost alwaysto follow applicable case law in the other system to prevent divergent results and to minimize forum shopping.
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 filed 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 dual-lane 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.
In common law legal systems. In English law it is ordinarily created by the decision of a higher court, such(a) 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 permits certainty and consistency in the a formal request to be considered for a position or to be allowed to do or have something. of law. Existing binding precedent from past cases are applied in principle to new situations by analogy.
One law professor has planned 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 for 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 fundamental 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 extra factsin 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 previously overturning it, thereby limiting the scope of the precedent.
Under the U.S. legal system, courts are fix 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 settings similar to that of the federal system.
The U.S. Supreme Court hasauthority on questions approximately 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 number one Amendment as it applies to suits for slander. whether 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 revise 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 expert such as lawyers and surveyors 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."
Judges are bound by the law of binding precedent in ]
In a conflict of laws situation, jus cogens norms erga omnes and principles of the common law such as in the Universal Declaration of Human Rights, to a varying degree in different jurisdictions, are deemed overriding which means they are used to "read down" legislation, that is giving them a particular purposive interpretation, for example applying European Court of Human Rights jurisprudence of courts case law.
"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, ]
The concept of super-stare decisis or "super-precedent" was pointed during the hearings of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Prior to the commencement of the Roberts hearings, the committee chair, 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 also persuasive authority is precedent or other legal writing that is not ]
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 ]
A court may consider the ruling of a higher court that is not binding. For example, a ]
Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example, an ]
Courts may consider ]
A case decided by a multijudge panel could written in a split decision. While only the majority theory is considered precedential, an outvoted judge can still publish a dissenting opinion. Common patterns for dissenting opinions include:[]
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 ]
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 turn widely with elements such as the reputation of the author and the relevance of the argument.[]
In the United States, every state attorney general is permitted to issue advisory opinions on questions of law. It is a process that has its origins in the English common law. Most state attorney opinions extension issues of government finance or the authority of political bodies within the state. Often, these opinions are the only usable authority interpreting rarely‑litigated statutes and constitutional provisions.
By and large, courts treat state attorney general opinions as persuasive authority. The opinions lack the force of law that statutes and judicial opinions have. But, they still have the potential to act as a sort of pseudo‑law if they constrain the activities of public officials or the public. Often times, this effect depends on the “formality” of the opinion. Opinions can be either formal, meaning they are published, or informal, meaning that they are sent directly to the opinion requestor. Although formal opinions can act as a sort of binding precedent when theylegal questions that a court has not, either form of opinion may act as a reference of law if they have a direct effect on the supervision of government.
The courts of England and Wales are free to consider decisions of other jurisdictions, and afford 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 ]
In the United States, in the gradual 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 ]
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 expediency example is the adoption in Tennessee of 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 ]
Nonpublication of opinions, or unpublished opinions, are those decisions of courts that are not usable for citation as precedent because the judges creating the opinion deem the cases as having less precedential value. Selective publication is the legal process which a judge or justices of a court resolve whether a decision is to be or not pblished in ]