How to Determine Case Law Precedent or Authority

Super stare decisis means that a precedent is immune from being overturned.

Precedent, or authority, is a principle determined by a court in a specific legal case that is subsequently applied to similar cases. You can search for precedent by reviewing the court decisions of legal cases regarding the same law. However, there are different types of precedent based on the jurisdiction and rank of the courts of the two legal cases you are reviewing. For that reason, you must look at the type of law in question and what courts are involved to determine which type of precedent the case creates.

Instructions

1. Identify what creates binding precedent. Binding precedent is based on the principle of "stare decisis," that judges are obligated to respect prior court decisions. Judges must follow the decisions of its own court and the decisions of higher courts with the same jurisdiction.

2. Identify persuasive precedent. A precedent is a persuasive precedent if it is a decision from a court of another jurisdiction or from a lower court with the same jurisdiction. Check if the precedent is dicta or a secondary source; these are automatically considered persuasive precedent.

3. Identify the decision maker if the decision was from the same court. If the level of decision maker of the precedent case is equal or higher to the decision maker in the current case, the precedent is binding. If it is lower, it is persuasive.

4. Compare the levels of decision makers if the decision was from a different court. On the federal level, a U.S. district court is a trial court, the U.S. Court of Appeals is the intermediate appellate, and the U.S. Supreme Court is the final arbiter. On the state level, the circuit/district court is a trial court, the state court of appeals is the intermediate appellate and the state Supreme Court is the final arbiter.

5. Identify what type of law is in question. If the U.S. Supreme Court makes the decision on an issue of federal law, their decision creates a binding precedent for any state court. Likewise, a state Supreme Court decision creates a binding precedent for any federal court on issues of a state law.

References

• University of Missouri Law School: Selecting Authority: Principles of Precedent & Stare Decisis
• Stanford Encyclopedia of Philosophy: Precedent and Analogy in Legal Reasoning

Resources

• Fowler, James. The Authority of Supreme Court Precedent
• http://jhfowler.ucsd.edu/authority_of_supreme_court_precedent.pdf