Our Precedential Court System
Stare decisis et non quieta movere:
“to stand by precedents and not disturb
settled points of law”
Stare decisis
Written judicial opinions in the American
common law system, like English common
law operate under the doctrine of Stare
decisis.
Stare decisis compels a court to decide a
present case in accord with decisions
rendered in similar cases in the past.
Advantages:
Judicial resources are conserved by
eliminating the need to reinvent solutions.
Litigants perceive that they will be treated
fairly.
Lawyers are more likely to be able to predict
outcomes.
Possible Disadvantages
Stare decisis must also be flexible enough to
allow for changes in the law.
This may be done by modifying a legal rule or
by overruling precedent.
Conflicts arise between the competing goals
of allowing for changes in the law and of
following established precedent.
Primary Authority
The application of certain sources of authority
determine the outcome of a legal dispute.
These sources of legal authority are called
“primary authority” because they are
established law.
Primary Authority
What are some examples of primary
authorities?
Judicial opinions, Statutes and Constitutions.
Primary Authority
Trump Chart
Constitution
Statutes
Regulations
Cases Interpreting Statutes and Regulations
Common Law
Secondary Authority
Other resources in which people write about
the law or collect general theories about
rules of law are referred to as secondary
authority.
Secondary authorities may influence a court
but may not mandate a result.
Secondary Authority
What are some examples of secondary
authority?
Law review articles, treatises,
restatements of the law, legal
periodicals,annotations and legal
encyclopedias.
An Exception to the Rule
Do you know how secondary material such
as the Restatement of Torts can become
primary authority?
When a State Supreme Court “adopts” a
restatement section in a judicial opinion,
the section becomes primary authority.
The comments to the section do not unless
the court specifically adopts them as well.
Mandatory and
Persuasive Precedent
Stare decisis operates within a court system
according to an internal hierarchy.
Courts are bound by decisions of courts
higher in the same court structure.
Decisions that a court must follow are
called “mandatory” or “binding” precedent.
Mandatory and
Persuasive Precedent
To determine mandatory vs. persuasive
authority you must know two things:
1) Jurisdiction (state/federal)
2) Level of the court (trial/appellate)
Alabama Circuit Courts are bound by
Decisions of The
Alabama Court of
Appeals and
Decisions of the
Alabama Supreme
Court
Federal District Courts are bound by
Their circuit court of
appeals and of
The U.S. Supreme
Court
Persuasive Precedent
Persuasive precedent is a decision or statement
of law which a court does not have to follow.
When do courts rely on persuasive precedent?
When there is not yet any binding precedent
on the subject or when the law has been
undergoing a change as set forth in the
persuasive precedent.
How much does it weigh?
Often courts will have to consider and weigh
persuasive precedent.
Several factors are used in determining the
weight of various cases:
The relative level of the issuing court
The date of the opinion
How much does it weigh?
The comparison between what the opinions
says and what the court does
The strength of the court’s reasoning
Subsequent treatment by authorities
Whether the statements pertaining to your
issue are Holding or Dicta
How much does it weigh?
The factual similarity between the opinion and
the present situation
The number of subscribing judges
Whether the opinion is published
Trends in the law and reputation of a judge
Remember!
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Primary authority may be mandatory
or persuasive.
Secondary authority is never
mandatory.