Whence comes the binding power of precedent?

March 1, 2005 12:25 PM

I've got some idle curiosity-type questions about the nature of legal precedent.

What is the origin of its power? Is there a law that governs it? I assume that it couldn't have been established by a court, since if there weren't already some system of precedent in place then any single future decision couldn't be binding. (I can understand that it would be rather chaotic if all cases were judged without regard to previous decisions in cases that dealt with similar matters, and that there's a pragmatic reason for adhering to some conception of precedent, but I'm interested in the origins of the particular system in place in the US.)

What, if anything, would happen if a lower court completely ignored or directly contradicted applicable precedential cases in rendering its decision? I assume that the decision would be overturned, but would there be any repercussions for the court/judge?

How does a decision become precedent, or is any case potentially precedential? Is it a matter of looking at the current case at hand and finding previous cases that are more-or-less similar in some relevant dimension? That would make some sort of sense to me—though it would open up a lot of room for questions about how similar two things are, or in what similarity consists, etc—but I believe I've also seen decisions in which the judge refers to some previous case as establishing a certain kind of test for, say, cases brought under a certain provision of a law. In that case did the judge in the previous case just say, "from now on, it's going to be like this, and if you don't like it, tough!"?

IAN, obviously, AL, so if I've misused any terms or have revealed myself to have a completely confused understanding of the issues, set me straight.

posted by kenko to law & government (6 comments total)

You're asking good questions, and people pay a lot of money to go to law school to try to learn, and, in fact, there are several answers to a couple of your questions, but I'll give it a go.

1. The origin of precedent in American courts (stare decisis) is a legacy of our shared common law heritage with England. Precedent, namely the believe that courts create law that is binding on later decisions, is an inherent power of common law courts. There is no statute (that I know of) in the United States Code that formally establishes stare decisis; rather it is because it is. Unsatisfying, but it's the same with a number of legal structures, not the least of which is the concept of eminent domain, which is a natural function of the state as a sovereign (the theory is that all land ultimately traces its title back to the King, so the state, acting in place of the King, can reach down and snatch up land).

2. If a lower court ignored precedent, the judge wouldn't go to jail or anything of that sort. If the judge ignored precedent for policy or statutory reasons (e.g., an Act of Congress or of a state legislature made the old judge-made law obsolete, which happens from time to time), the court of appeals could uphold the change in governing law (in fact, it would have to in the case of a statutory change, unless there was a good reason the statute was invalid, most likely as unconstitutional). If, on the other hand, the judge simply made up his or her mind to make new law and did so repeatedly, the judge could, at the least, get a reputation of being a nut and, in borderline cases, wouldn't get the benefit of the doubt on review; in a more extreme case where a judge was making new law for wrongful reasons (to "fix up" a friend, for example) a federal judge (who normally serves for life) could be impeached. State judges typically don't have lifetime tenure, and they would be easier to remove.

3. A decision becomes precedent by being upheld (not entirely correct, but good enough for government work). There are, actually, varying levels of precedent. Binding authority comes from above (either the US Supreme Court or your circuit Court of Appeals in federal courts or the US Supreme Court, your state supreme court, and your state court of appeals in state courts). Persuasive authority comes from sister circuits, other states, other common law countries (technically some common law decisions under British courts from the colonial era may still be in effect), law journals, law restatements, etc.; this sort of authority does not bind a decision (and, in the case of non-court materials, is not really precedent like you mean), but it can sway a court to take a particular course of action in a close decision.

4. You didn't ask, but there are actually several types of "law" in the US. First, there's law. Tied up with law is statutory law (acts passed by a legislature). These two inform each other directly, and are traceable back to English common law courts and the English Parliament. Second, there's equity, which originated in English church courts. Equity decisions are based on what is fair, and generally involve making somebody do something. There is also administrative law (law made by executive branch agencies), admiralty law (a whole separate branch of law for oceangoing vessels), patent law, and so forth. Broadly, however, America has a system of law and a system of equity; even if you don't have a remedy under the law, you may have a remedy as a matter of fairness. Most states don't have separate equity courts any more (chancery courts with chancellors instead of judges), but equity as a concept is very much alive in law courts.

The reason I mention the law/equity dichotomy is that I'd recommend this book as an interesting and very readable (except in a couple of sections) history of law in the US. Friedman's major problem is that he assumes the reader knows what law and equity are, and, when I first read it, I didn't.

Anyway, DO NOT RELY ON ANYTHING IN THIS POST AS LEGAL ADVICE. IF YOU HAVE ANY CONCERNS ABOUT A LEGAL MATTER YOU SHOULD CONSULT WITH AN ATTORNEY. And, IANAL. Finally, this is just a whipped off answer on a Tuesday afternoon, so there may be slight inaccuracies, but I hope it does the job.
posted by socratic at 2:18 PM on March 1, 2005

Larry Solum has a long, but good post on stare decisis from a while back. It's deeply immersed in his particular legal philosophy, but it's clear and makes an interesting argument.

Consistency of application is a legal virtue; the imperative to judge like cases alike is, arguably, a precondition for there being anything we recognize as "law." So some kind of adherence to precedent is almost overdetermined: no matter how you ground your legal philosophy, you come out with some reason to be consistent over time. Thus, as with obviously right cases (e.g. Brown v. Board of Ed.), you wind up with the puzzle of arguing over why something right is right.

Historically, precedent wasn't so central to the common-law system. Judges had a sense of what the law was, and they'd decide cases in line with that sense. A good hypo was worth more than a good citation to a past case. From the outside, the pattern of decisions would look very much like adherence to precedent, because it was generally consistent with itself. Over time, with better record-keeping of past cases, judges began to rely more explicitly on past decisions as guideposts. A series of Lord Chancellors, in particular, did a great deal to reduce the discretion of individual judges by elevating the importance of precedent (so precedent became a way of building more fairness into the system -- it was both a check on politically-controlled judges and judges who were too independent from political control). Precedent has been such an "obvious" assumption of the American legal system that it's hard to find an explicit textual source for it.

Now, given that commitment, I can turn to your questions.

What, if anything, would happen if a lower court completely ignored or directly contradicted applicable precedential cases in rendering its decision? I assume that the decision would be overturned, but would there be any repercussions for the court/judge?

Ask Roy Moore. The higher court signals its extreme displeasure with you and uses increasingly brusque tools in its arsenal. First it overrules you and remands for futher proceedings. Then it overrules you and remands just for entry of judgment. Then it starts entering judgment itself and bypassing you entirely. Then it starts issuing writs of prohibition and taking cases away from you entirely. Probably some time before it hits this last option, the political branches or the court system's own internal disciplinary processes have mobilized to go after you and you find your judgeship taken away from you.

How does a decision become precedent, or is any case potentially precedential?

Jan Deutsch said that "No case is a precedent on the day it is decided." Precedent is established when later decisions adhere to an earlier one and claim they do so because of precedent. (Yes, this sounds circular, but all law is circular. Think of "precedent" as being as much a rhetorical explanation of how courts explain consistency through time as much as it is a normative theory that itself independently demands consistency through time.)

Is it a matter of looking at the current case at hand and finding previous cases that are more-or-less similar in some relevant dimension? That would make some sort of sense to me—though it would open up a lot of room for questions about how similar two things are, or in what similarity consists, etc . . . .

Yes. That's casuistry, and it's an attribute of any system which considers one case at a time. That "room for questions" is what lawyers do--they argue over similarities and differences and try to figure out which similarities are the relevant ones. Sometimes, you have two cases and you need to figure out which one is more similar; sometimes you have many cases and you want to figure out what they all have in common. There's endless room for manipulation here, and lawyers make a lot of specious arguments. One of the deep puzzles of legal philosophy is why it is that lawyers and laypeople can recognize some arguments as good and others as bad (there are, shockingly, many schools of thought on this question).

[B]ut I believe I've also seen decisions in which the judge refers to some previous case as establishing a certain kind of test for, say, cases brought under a certain provision of a law. In that case did the judge in the previous case just say, "from now on, it's going to be like this, and if you don't like it, tough!"?

Yes, that too. The Supreme Court often does this: it announces that in the future it will use a particular test for deciding certain kinds of cases. (Not that a test is ever truly unambiguous: lawyers also argue endlessly about whether given tests apply to particular cases.) Of course, sometimes the court shifts course and doesn't wind up applying that test after all (see Deutsch's aphorism, above). Something else that you sometimes see is that the court just decides a case and then in a later case announces that the first case established a particular rule, even though that rule may not have been textually explicit in the first case. (Which opens up yet another opportunity for lawyers to argue: what did the first case actually "hold" and what parts of the court's opinion should be read as a rule applying to future cases?)
posted by grimmelm at 2:35 PM on March 1, 2005

Consistency of application is a legal virtue;

It's also a political and economic virtue. It's a political virtue because those who have to deal with legal matters are not continually revisiting old battles (or worrying about defending existing processes). Arguments do not have to be constantly made about what the law should be - one simply points (via citation) to what the law (as the courts have interpreted it) actually is.. (Consider how clogged the courts would be by appeals if precedent was randomly followed, for example.)

Perhaps more importantly, if precedent is observed, business owners and workers and consumers have the predictability they need to be able to focus on making good choices.

For example, in California, the courts have consisently ruled that employers cannot enforce broad non-compete agreements, regardless of what an employee has signed. Suppose the California Supreme Court were to reverse that position in 2005. Then go back to restricting non-competes in 2006. Then, in 2007, to decide that non-competes could be broadly applied.

Or, for example, in Washington State, the state Supreme Court recently ruled that county health authorities cannot administratively ban smoking in restaurants. Consider a world where next year, they decide that such bans can be established administratively. And the following year, that they cannot be. How would businesses (and county health authorities) make good decisions in such a world?
posted by WestCoaster at 3:29 PM on March 1, 2005

I can understand that it would be rather chaotic if all cases were judged without regard to previous decisions in cases that dealt with similar matters

You might be interested to know that it's basically the common law countries (read: British colonies) that rely on precedent. In civil law countries, such as continental Europe, judges decide each case individually, and precedent isn't binding at all.
posted by gd779 at 5:13 PM on March 1, 2005

gd779 - I'm not sure about today, but the same was true of Louisiana. As a Code jurisdiction, they did not, originally, participate in the common law system of England and the United States. Not sure how integrated they are today though.
posted by socratic at 5:34 PM on March 1, 2005

Just a couple of minor additions to socratic's excellent summary.

First, state law as decided by that state's highest court is not only binding on state courts, but it's binding on federal courts as well insofar as they have to decide anything based on that state's law (unless of course the state law is itself against the constitution of the United States). That's why, for example, the Supreme Court of the United States could not overturn the Massachusetts Supreme Court's decision that homosexual marriage was required under the Massachusetts constitution.

Second, appeals courts can and do make use of what's called an unpublished opinion to prevent a particular decision from gaining any precedential value. The decision is not literally unpublished, but the court has marked it so that any future court cannot rely on it as a basis for precedent.

Finally, one final point on the precedential value of an opinion. Not only can a case be or not be a precedent, but only part of a case can be as well. Courts will often look at a case that's been previously decided and not follow some of the reasoning in it by saying it's dicta, which basically means not pertinent to the decision. Conversely, one of the biggest precedents the Supreme Court relies on is that there are different standards of review in discrimination cases depending on the type of discrimination. This rule of differing levels of scrutiny first surfaced in a footnote.
posted by EatenByAGrue at 11:27 PM on March 1, 2005