Precedent in the United States

A previous court ruling on a question of law. A precedent is recognized as providing a basis for resolving identical or similar cases coming before courts at a later date. Precedents are regarded as a principal source of common law. A precedent may be established when a court considers a novel legal issue or offers an interpretation on statute. Under the doctrine of Stare Decisis (Judicial Function) (“let the decision stand”), courts attempt to resolve present and future cases on the basis of legal principles established through precedent. Precedents can be overturned in making later decisions, but this occurs only rarely. See Precedent in the legal Dictionaries.

Analysis and Relevance

Courts are expected to follow precedents because they are established legal doctrine. To do so heightens the stability and predictability of the law. Precedents also serve a pragmatic function for courts. Reliance on past practice reduces whatever risk may be associated with new legal directions. The portion of a precedent that courts utilize in subsequent cases is the basic principle necessary to resolve an issue. This element is called the ratio decidendi. Other discussion in an opinion is called obiter dictum, and it has no legal relevance. The existence of legal precedent does not eliminate all judgment in legal interpretation. Most cases before appellate courts involve questions that suggest more than one line of precedents, and it is often possible to find precedents that support both sides of a case. Indeed, legal disputes are commonly contested over which precedents control a particular question in a case. Precedents that are marginally different from an immediate case may be distinguished and held not to apply. If a particular precedent becomes obsolete or is shown to be unworkable, a court may modify or abandon it and replace it with a new precedent.

Precedent References

Precedent Definition in the Legislative Process

The following is a definition of Precedent, by the National Conference of State Legislatures (NCSL): Interpretation of rulings by presiding officers on specific rules; unwritten rules that are established by custom.

The Concept of Precedent

“In the United States, judicial decisions do have the force of law and must be respected by the public, by lawyers and of course, by the courts themselves. This is what is signified by the “concept of precedent,” as expressed in the Latin phrase stare decisis — “let it [the decision] stand.” The decisions of a higher court in the same jurisdiction as a lower court must be respected in the same or similar cases decided by the lower court.

This tradition, inherited by the United States from England, is based on several policy considerations. These include predictability of results, the desire to treat equally everyone who faces the same or similar legal problems, the advantages to be gained when an issue is decided that affects all subsequent cases and respect for the accumulated wisdom of lawyers and judges in the past. But it is also understood that primary responsibility for making law belongs to the legislative authority; judges are expected to interpret the law, at most filling in gaps when constitutions or statutes are ambiguous or silent.

Thus, there are important limiting features to the concept of precedent. First and foremost, a court decision will only bind a lower court if the court rendering the decision is higher in the same line of authority. For example, a decision of the U.S. Supreme Court on a matter of constitutional or ordinary federal law will bind all U.S. courts everywhere because all courts are lower and in the same line of authority as the Supreme Court in such matters. But decisions of one of the several U.S. Courts of Appeals — the intermediate federal appeals courts — will only bind federal trial courts within their respective regions. Decisions of a state supreme court on the meaning of a state law where that court sits will be binding everywhere, so long as the state court’s decisions do not conflict with constitutional or federal statutory law.

American judges tend to be very cautious in their decision-making. As a rule, they only entertain actual cases or controversies brought by litigants whose interests are in some way directly affected. In addition, judges usually decide cases on the narrowest possible grounds, avoiding, for example, constitutional issues when cases may be disposed of on non- constitutional grounds. Then, too, the “law” that judges state is only so much of their decision as is absolutely necessary to decide the case. Any other pronouncement on the law is unofficial.

Another important limiting feature of the concept of precedent is that the later case must be the same or closely related to the previous one. Unless the facts are identical or substantially similar, the later court will be able to distinguish the earlier case and not be bound by it.

The highest court of a jurisdiction, e.g., the U.S. Supreme Court for the United States or a state supreme court within its own state, can overrule a precedent even where the facts of the later case are identical or substantially similar to the earlier case. In 1954, for example, in the famous school integration of Brown v. Board of Education, the U.S. Supreme Court overruled an analogous decision it had rendered in 1896.

But such direct over-ruling is not common. What is more likely is that the high court, by distinguishing later cases over time, will move away from an earlier precedent which has become undesirable. But for the most part, the long standing precedents of the high courts remain.” (2)

Precedent in relation to Invention and Patent Law

Earlier legal rulings. One of the rock solid shifting principles of law is stare decises (that which has been decided stands). Once a principle has been determined in a case all other cases must follow the same principle. In fact such decisions can change, but rarely and with due consideration. (A well known example is Brown v. Board of Education (1954) which overruled Plessy v. Furgesson(1896)).

Precedent and the United States Constitution

According to the Encyclopedia of the American Constitution, about its article titled PRECEDENT, in Marbury v. Madison (1803) Chief Justice john marshall rested the legitimacy of judicial review of the constitutionality of legislation on the necessity for courts to “state what the law is” in particular cases. The implicit assumption is that the Constitution is law.

Concept of Precedent

In the U.S., in the context of Judiciary power and branch, Precedent has the following meaning: The principle of precedent is a key element of common law systems according to which previous judicial decisions influence current and future judicial decisions unless previous decisions are explicitly overruled. Precedent is a basis for stability in law, built on the expectation that judgments will be consistent with one another over time unless there is reason for change. Specifically, past court decisions in similar cases – the case law dealing with a particular type of dispute – are used to justify a similar approach to resolving current disputes of the same or similar types. (Source of this definition of Precedent : University of Texas)


Meaning of Precedent

In plain or simple terms, Precedent means: A rule of law that is established by an appellate court in an earlier case serves as binding precedent in all subsequent similar cases.

Basic Meaning of Precedent

Precedent means: a decision of a court which is thereafter followed as an example in subsequent similar cases.


See Also

  • Judiciary Power
  • Judiciary Branch

Meaning of Precedent

In plain or simple terms, Precedent means: A rule of law that is established by an appellate court in an earlier case serves as binding precedent in all subsequent similar cases.

Basic Meaning of Precedent

Precedent means: a decision of a court which is thereafter followed as an example in subsequent similar cases.


Notes and References

  1. Definition of Precedent from the American Law Dictionary, 1991, California
  2. Judge Peter J. Messitte, USIS, Issues of Democracy, September 1999

See Also

Further Reading (Articles)

  • Precedent Is Not a Threat to Originalism, The Washington Post; January 22, 2014; Baude, Will
  • Originalism and Precedent, Harvard Journal of Law & Public Policy; January 1, 2011; McGinnis, John O. Rappaport, Michael B.
  • Precedent in the Federal Courts of Appeals: An Endangered or Invasive Species?, Journal of Appellate Practice and Process; March 22, 2006; Oakley, John B.
  • Originalism, Precedent, and Judicial Restraint, Harvard Journal of Law & Public Policy; January 1, 2011; Rosen, Jeffrey
  • Warren Court Precedents in the Rehnquist Court, Constitutional Commentary; March 22, 2007; Cross, Frank B. Smith, Thomas A. Tomarchio, Antonio
  • Factual Precedents, University of Pennsylvania Law Review; December 1, 2013; Larsen, Allison Orr
  • Non-Judicial Precedent, Vanderbilt Law Review; April 1, 2008; Gerhardt, Michael J.
  • ORIGINALISM, PRECEDENT, AND JUDICIAL RESTRAINT, Harvard Journal of Law & Public Policy; January 1, 2011; Rosen, Jeffrey
  • Toward a Theory of Precedent in Arbitration, William and Mary Law Review; April 1, 2010; Weidemaier, W. Mark C.
  • Mostly Unconstitutional: The Case against Precedent Revisited, Ave Maria Law Review; January 1, 2007; Lawson, Gary
  • The constitutional case against precedent, Harvard Journal of Law & Public Policy; January 1, 1994; Lawson, Gary
  • The Influence of Precedent on State Supreme Courts, Political Research Quarterly; June 1, 2012; Kassow, Benjamin Songer, Donald R. Fix, Michael P.
  • The Value of Precedent: Appellate Briefs and Judicial Opinions in the U.S. Courts of Appeals, Justice System Journal; January 1, 2013; Moyer, Laura P. Collins, Todd A. Haire, Susan B.
  • The Politics of Precedent on the US Supreme Court.(Book review), Ave Maria Law Review; January 1, 2007; Poole, Bryce G.

Precedent Definition in the context of the Federal Court System

A court decision in an earlier case with facts and legal issues similar to a dispute currently before a court. Judges—following the common-law tradition—will generally “follow precedent.” They use the principles established in earlier cases to decide new cases that have similar facts and raise similar legal issues. A judge will disregard precedent if a party can show that the earlier case was wrongly decided, or that it differed in some significant way from the current case. Lower courts must follow precedents set by the decisions of higher courts.

Precedent: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Precedent. This part provides references, in relation to Precedent, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Precedent by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Precedent and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Precedent or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Precedent and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Precedent. Finding these decisions can be challenging. In many cases, researchers about Precedent should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Precedent when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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