precedent

Definition of precedent

Etymology

From Middle English < Old French < Latin praec�"d�"ns, present participle of praec�"dere (“to precede”).

Pronunciation

• (UK, adjective) IPA: /pɹiˈsiː.dənt/, SAMPA: /pr\i"si:.d@nt/
• (UK, US, noun) enPR: prĕs'ĭ-dənt, IPA: /ˈpɹɛs.ɪ.dənt/, SAMPA: /"pr\Es.I.d@nt/
• Audio (US) ^[?]

Noun

precedent (plural precedents)

1. An act in the past which may be used as an example to help decide the outcome of similar instances in the future.
2. (law) A decided case which is cited or used as an example to justify a judgment in a subsequent case.
3. The previous version.

Adjective

precedent (not comparable)

1. Happening or taking place earlier in time; previous or preceding.

Verb

precedent (third-person singular simple present precedents, present participle precedenting, simple past and past participle precedented)

1. (transitive, law) To provide precedents for.
2. (transitive, law) To be a precedent for.

Further reading

In common law legal systems, a precedent or authority is a principle or rule established in a legal case that a court or other judicial body may apply when deciding subsequent cases with similar issues or facts. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a particular type of case and thereafter referred to in deciding similar cases."

In other words precedent can be defined as "an already decided decision which furnishes the basis for later cases involving similar facts and issues."

Type of precedent

• binding precedent
• persuasive precedent

Critical analysis of precedent

Court formulations

The United States Court of Appeals for the Third Circuit has stated:

A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.

The United States Court of Appeals for the Ninth Circuit has stated:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere - "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Under the doctrine of stare decisis a case is important only for what it decides - for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.

Justice McHugh of the High Court of Australia in relation to precedence remarked in Perre v Apand:

[T]hat is the way of the common law, the judges preferring to go 'from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point, and avoiding the dangers of the open sea of system or science'.

Academic study

Precedents viewed against passing time can serve to establish trends, thus indicating the next logical step in evolving interpretations of the law. For instance, if immigration has become more and more restricted under the law, then the next legal decision on that subject may serve to restrict it further still.

Scholars have recently attempted to apply network theory to precedents in order to establish which precedents are most important or authoritative, and how the court's interpretations and priorities have changed over time.

Super stare decisis

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, Richard Posner and William Landes coined the term "super-precedent," in an article they wrote about testing theories of precedent by counting citations. Posner and Landes used this term to describe the influential effect of a cited decision. The term "super-precedent" later became associated with different issue: the difficulty of overturning a decision. In 1992, Rutgers professor Earl Maltz criticized the Supreme Court's decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on an issue of major national importance (as in Roe v. Wade), that side can protect its position from being reversed "by a kind of super-stare decisis."

The issue was raised again in the questioning of Chief Justice John G. Roberts and Justice Samuel Alito during their confirmation hearings before the Senate Judiciary Committee. Before the hearings the chair of the committee, Senator Arlen Specter of Pennsylvania, wrote an op/ed in the New York Times referring to Roe as a "super-precedent." He mentioned the concept (and made seemingly humorous references to "super-duper precedent") during the hearings, but neither Roberts nor Alito endorsed the term or the concept.

Criticism of Precedent

In a controversial 1997 book, attorney Michael Trotter blamed over-reliance by American lawyers on binding and persuasive authority, rather than the merits of the case at hand, as a major factor behind the escalation of legal costs during the 20th century. He argued that courts should ban the citation of persuasive precedent from outside their jurisdiction, with two exceptions:

1. cases where the foreign jurisdiction's law is the subject of the case, or
2. instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions.