Precedents reviewed over time can be used to set trends and thus indicate the next logical step in the development of legal interpretations. If, for example, immigration has become increasingly restricted by law, the next court ruling on the issue may serve to restrict it even further. The existence of lost precedents (reasoned opinions not provided by conventional legal research sources) has been identified as a force that can distort the development of the law. [27] Researchers have recently attempted to apply network theory to precedents to determine which precedent is more important or authoritative, and how the court`s interpretations and priorities have changed over time. [28] Case law in common law jurisdictions is the set of decisions of arbitral tribunals or other decisions that can be cited as precedents. In most countries, including most European countries, the term is applied to any set of legal decisions based on previous decisions, such as previous decisions of a government agency. The publication and indexing of decisions for the use of lawyers, courts and the general public in the form of legal opinions is essential to the development of jurisprudence. While all decisions constitute precedents (albeit at different levels of authority, as discussed in this article), some become “main cases” or “landmark decisions” that are cited particularly frequently. In a “first impression” case, courts often rely on compelling precedents from courts in other jurisdictions that have dealt with similar issues before.

Convincing precedents can become binding when adopted by a higher court. One law professor described the compelling precedents as follows: Precedents are central to analysis and legal decisions in common law countries, such as the United Kingdom and Canada (except Quebec). In some systems, precedents are not binding, but are taken into account by the courts. In the United States, the courts have unanimously concluded that the text of the law is read as written, using the ordinary meaning of the words of the law. A counter-argument (in favour of the benefits of stare decisis) is that if the legislature wishes to amend case law (with the exception of constitutional interpretations) by law, it is empowered to do so. [58] Critics sometimes accuse some judges of selectively applying the doctrine by invoking it to support precedents that the judge has already supported, but ignoring them in order to alter precedents with which the judge disagreed.[59] Any court may attempt to distinguish its present case from that of an enforceable precedent in order to reach a different conclusion. The validity of such a distinction may or may not be recognized on appeal. An appellate court may also propose an entirely new and different analysis from that of the lower courts and may or may not be bound by its own previous decisions or, in any event, it may distinguish those decisions on the basis of significant differences in the facts applicable in each case. Or a court may view the case before it as a “first impression” that is not subject to precedent. [7] In 1976, Richard Posner and William Landes coined the term “superprecedent” in an article they wrote about testing the theories of precedents by counting citations. [18] Posner and Landes used this term to describe the influential effect of a cited decision.

The term “superprecedent” was then associated with another issue: the difficulty of reversing a decision. [19] In 1992, Rutgers professor Earl Maltz criticized the Supreme Court`s decision in Planned Parenthood v. Casey for arguing that if one party can take control of the Court in a case of great national importance (as in Roe v. Wade), that party can protect its position from being overthrown “by some sort of superstar decider.” [20] The controversial notion that certain decisions are virtually immune to overturn, whether or not they have been properly decided, is the idea to which the term “super-stare decisis” usually refers today. In practice, courts can usually find precedents for the direction they want to take in deciding a particular case. Therefore, precedent is often used to justify a particular outcome in a case because it is used to make decisions. The set of judicial decisions includes the points used to formulate and decide a case before a court. The lower courts are bound by the precedent set by the higher courts in their region. For example, a federal district court that falls within the geographic boundaries of the Court of Appeals for the Third Circuit (the mid-level court of appeals against decisions of the District Courts of Delaware, New Jersey, Pennsylvania, and the Virgin Islands) is bound by the judgments of the Court of the Third Circuit. but not by decisions of the Ninth District (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington), because circuit courts of appeals are geographically regulated.

Circuit courts of appeal can interpret the law as they wish, as long as there is no binding precedent from the Supreme Court. One of the most common reasons the Supreme Court grants certiorari (i.e., it agrees to hear a case) is when there is a dispute between district courts over the meaning of a federal law. The mixed systems of the Nordic countries are sometimes considered a branch of civil law, but they are sometimes considered distinct from the civil law tradition. In Sweden, for example, jurisdiction may play a more important role than in some continental civil justice systems. The two highest courts, the Supreme Court (Högsta domstolen) and the Supreme Administrative Court (Högsta förvaltningsdomstolen), have the right to set precedents with persuasive powers for any future application of the law. Courts of appeal, whether judicial (hovrätter) or administrative (kammarrätter), may also issue decisions that serve as guidelines for the application of the law, but these decisions are persuasive, are not subject to review and can therefore be overturned by higher courts. Precedents are not “binding” for a judge or “binding” in the sense that laws bind citizens. A judge cannot be imprisoned or fined if he or she does not agree. His oath is not a precedent, but at least for federal judges, it is “the Constitution and laws of the United States.” The canons, archived at the Wayback Machine of Judicial Ethics in 2015-04-18, do not mention obedience to precedents, but to “the federal Constitution and that of the state whose laws they administer.” The Code of Judicial Conduct says nothing about precedents. In most cases, precedent is the most reasonable interpretation of the Constitution and our laws, in which case the oath to the Constitution is most faithfully observed following precedents. But if a judge finds that the interpretation of the Constitution in a majority opinion is not persuasive compared to the dissenting interpretation, then following a precedent may violate the judge`s oath.

In a decision in which Justice Roy Moore saw such a distinction, he recognized his authority as a precedent, but stated: “The interpretation of the Constitution [by the majority of the Supreme Court] is its interpretation. But nothing can contradict the oath of a sworn officer to the constitution. Of course, the chaos is the result of reckless disregard for precedent. Citizens who are trying to obey the law need to have an idea of what the law is. In civil law and pluralistic systems, such as Scots law, precedents are not binding, but case law is taken into account by the courts. Stare decisis (/ˈstɛərri dɪˈsaɪsɪs, ˈstɑːreɪ/) is a legal principle that judges are bound by precedent set by previous decisions.