Kara Sears
Case law, also known as common law, is a system of law based on precedent, or the decisions made in previous cases, rather than law based on constitutions, statutes, or regulations. In common law countries, including the United States, courts interpret statutes and apply precedents from past cases to decide the law applicable to a new case. This process, known as stare decisis, or let the decision stand, means that lower courts are generally bound by the decisions of higher courts in the same jurisdiction. However, the weight given to precedent can vary depending on the jurisdiction and the specific court. For example, in the US federal court system, decisions from one circuit court are binding on the district courts within that circuit but are only considered persuasive authority for other circuit courts. This distinction between mandatory and persuasive authority is important when determining whether the first or second department's case law is more persuasive.
Explore related products
What You'll Learn
Mandatory vs. persuasive authority
In the United States, the concept of mandatory authority refers to the decisions of higher courts within the same jurisdiction that lower courts are required to follow. Specifically, all federal and state courts are bound by the decisions of the US Supreme Court on constitutional and federal law issues. At the federal level, circuit courts tend to follow previous decisions made within their circuit, and district courts fall under the jurisdiction of their respective circuit courts, making the circuit court's opinions binding on the district court. For example, the 9th Circuit Court, which covers California, has its decisions binding in the Central District of California, the federal district court for Los Angeles.
On the other hand, persuasive authority refers to decisions that can influence but do not bind courts. Persuasive authority can be a useful tool for finding binding cases. For instance, if a lawyer is working within the 9th Circuit and finds a relevant case from the 5th Circuit, they can use that case to locate binding 9th Circuit authority. Additionally, in a federal court case involving a state law issue, the decisions of the state supreme court on that specific issue would be binding, while federal courts may treat decisions of the state court of appeals as persuasive authority.
While it is preferable to cite controlling authority, citing non-binding cases as persuasive authority can be advantageous when there is little or no binding authority on a specific issue within a jurisdiction. In such cases, citing on-point cases from other jurisdictions can provide persuasive precedent, but it is important to explain to the court the relevance of the cited precedent and why it should be followed.
The distinction between mandatory and persuasive authority is crucial in legal research and practice. While mandatory authority must be followed, persuasive authority provides flexibility and allows for the consideration of relevant decisions from other jurisdictions, contributing to the evolution of legal interpretation and application.
Case Law and Judge-Made Law: What's the Connection?
You may want to see also
Explore related products
Common law vs. civil law
There are two primary global legal systems: common law and civil law. Common law is rooted in the English legal tradition, specifically in medieval England, and is generally characterised by its reliance on judicial precedent. Common law systems are less prescriptive, and place great weight on precedent, recognising prior court decisions as legally binding. In a common law system, everything is permitted unless expressly prohibited by law.
In contrast, civil law is derived from the Roman Empire, with its modern form being codified in the 19th century, particularly in France and Germany. Civil law systems are more prescriptive and rely on legal codes as the primary source of law. Civil law judges tend to give less weight to precedent and more to the code. Civil law codes are designed to state the law in a coherent and comprehensive manner.
Countries that follow a common law system are typically former British colonies or protectorates, including the United States. The United States is a good example of a country that has a hybrid legal system, with Louisiana being the only U.S. state whose private civil law is based on French and Spanish codes, rather than English common law.
In a civil law jurisdiction, unless a contract specifies that the parties have agreed to arbitration, it will be enforced by the administrative courts. In a common law system, there is extensive freedom of contract, and few provisions are implied by law, so it is important to set out all the terms in the contract itself.
Writing a Law Review Case Note: A Step-by-Step Guide
You may want to see also
Explore related products
Judicial precedent
In common law countries, including the United States, judicial precedent is an essential aspect of the legal system. The decisions of higher courts are considered mandatory authority, and all lower courts are required to follow their rulings. For example, in the US federal court system, the Supreme Court is the highest authority, and its decisions on Constitutional issues and federal law are binding on all lower federal and state courts.
Within the US federal courts, there are twelve regional circuits, each with its own circuit court of appeals. The decisions of one circuit court are binding on the district courts within that circuit. However, they only carry persuasive authority in other circuits. District court decisions, on the other hand, are not binding precedent at all and hold only persuasive value.
The weight given to judicial precedent also depends on its recency, with more recent decisions generally carrying more weight than older ones. Additionally, the decisions of higher courts or legislatures are typically given more weight than those of lower courts.
In some instances, academic writers and legal scholars may be cited as persuasive authority. This often occurs when judges are considering novel legal theories or when they find the academic's interpretation of the law more compelling than existing case law.
Case Law: Why It's Not Just for Lawyers
You may want to see also
Explore related products
Binding precedent
In the United States, case law, or common law, is based on precedents set by previous judicial decisions, rather than law based on constitutions, statutes, or regulations. Common law systems follow the doctrine of stare decisis, which means that most courts are bound by their own previous decisions in similar cases. According to stare decisis, all lower courts should make decisions consistent with the previous decisions of higher courts. For example, in the US federal court system, which is divided into twelve regional circuits, decisions of one circuit court are binding on the district courts within that circuit. These circuit court decisions are also binding on the circuit court itself, but they are only persuasive authority for other circuit courts.
In a common law system, precedents are maintained over time through court records and are historically documented in collections of case law known as yearbooks and law reports. The ratio decidendi, or the necessary analysis that constitutes a precedent, is binding on other courts. On the other hand, obiter dicta, or further analyses not necessary to the determination of the current case, are considered persuasive authority but are not technically binding.
In addition to past judicial decisions, academic writers are often cited in legal arguments and decisions as persuasive authority. This is particularly true when judges are attempting to implement reasoning that has not yet been adopted by other courts or when the judge finds the academic's restatement of the law more compelling than existing case law. Other sources of persuasive authority include Restatements of various subject matter areas, edited by the American Law Institute, and the Corpus Juris Secundum, an encyclopedia of common law and its variations across state jurisdictions.
While the decisions of higher courts carry more weight than those of lower courts, the binding nature of precedent is ultimately determined by the specific jurisdiction in which a case is being argued. For example, in most jurisdictions, decisions by appellate courts are binding on lower courts in the same jurisdiction, but decisions of lower courts are only non-binding persuasive authority.
Female Personhood: A Legal Battle
You may want to see also
Explore related products
$12.61 $25.99
$22.99 $16.99
Appeals process
In the United States, there is no automatic right of appeal. Appeals are usually based on arguments that there were errors in the trial procedure or errors in the judge's interpretation of the law. The party appealing is called the appellant or petitioner, and the other party is the appellee or respondent. The appeal process is started by filing a notice of appeal, which begins the time period within which the appellant must file a brief—a written argument containing their view of the facts and the legal arguments they rely on to seek a reversal. The appellee then has a specified time to file a response, and the appellant may then file another brief in response to the appellee.
Appeals courts sometimes make their decisions based on these written briefs alone. However, many cases are selected for "oral argument" before the court. This is a structured discussion between the appellate lawyers and a panel of judges focusing on the legal principles in dispute. Each side is given a short time—usually about 15 minutes—to present arguments and answer questions. In the U.S. Supreme Court, an hour is typically allotted for oral argument, giving each side's lawyers about half an hour. In federal courts of appeals, attorneys are often given less time, with 10- or 15-minute arguments being common. The appellate court determines whether errors occurred in applying the law at the lower court level and will generally reverse a trial court only for an error of law. However, not every error of law is grounds for reversal—some are harmless errors that did not prejudice the rights of the parties to a fair trial.
After oral arguments or other presentations for judgment, the appeals court judges meet in conference to discuss the case. They often issue written decisions, particularly when the decision deals with a new interpretation of the law or establishes a new precedent. One judge is designated to write an opinion, and the opinion may go through several drafts before a majority of the court agrees. Judges disagreeing with the majority opinion may issue a dissenting opinion, and judges agreeing with the result but not the reasoning may file a concurring opinion. Occasionally, the appeals court will issue an unsigned opinion, called per curiam.
The court of appeals decision is usually the final word in a case, unless the case is sent back to the trial court for additional proceedings or the parties ask the U.S. Supreme Court to review the case. A litigant who loses in a federal court of appeals or the highest court of a state may file a petition for a "writ of certiorari," a document asking the Supreme Court to review the case. The Supreme Court will typically only hear a case when it involves an unusually important legal principle or when two or more federal appellate courts have interpreted a law differently. There are also a few special circumstances in which the Supreme Court is required by law to hear an appeal.
Case Law: When Does It Stand?
You may want to see also
Frequently asked questions
Case law is a law based on precedents, or the judicial decisions from previous cases, rather than law based on constitutions, statutes, or regulations.
Courts are required to follow the decisions of higher courts in the same jurisdiction, making these cases mandatory authority. Cases that are from lower courts or outside the jurisdiction are considered persuasive authority, which means they are not binding but can be used as a tool to find binding cases.
The presiding judge determines which precedents to apply in each new case. In common law countries, courts interpret statutes and apply precedents which record how and why prior cases have been decided.
In the US federal court system, there are 12 regional circuits, each with its own circuit court of appeals. The decisions of one circuit court are binding on the district courts within that circuit but are only persuasive authority on sister circuits. So, the persuasiveness of a case law depends on the jurisdiction and the court it is being presented to, rather than there being a general rule that first department case laws are more persuasive.
Restatements of various subject matter areas, edited by the American Law Institute, are considered highly persuasive authority and are often cited by American courts and lawyers. Academic writers are also often cited as persuasive authority when judges are attempting to implement reasoning that has not yet been adopted by other courts.
