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.