Despite the acknowledged importance of precedent, few scholars have attempted to explain systematically how or why courts choose to interpret it. The literature on the quantitative study of precedent can be broadly divided into two parts. First, a variety of studies examine either the citation of court opinions (e. g. , Friedman et al.
1981; Landes & Posner 1976; Merryman 1977) or patterns of citations among state courts (e. g. , Caldeira 1985; Walsh 1997). These articles shed light, for example, on the conditions under which one court will cite the opinions of an- other court.This line of research, however, does not seek to ex- plain how court opinions actually interpret precedents.
Second, a handful of studies examine how the Supreme Court substan- tively treats its own precedents (e. g. , Brenner & Spaeth 1995; Johnson 1985, 1986). For instance, Spriggs and Hansford (2001) show in part that the Supreme Court is more likely to overrule one of its precedents when it is either ideologically distant from the precedent or when the Court has previously interpreted the precedent in a negative manner.
The Court has three basic ways it can deal with precedents that might bear on a case it is deciding.First, the Court can explicitly rely on a precedent as controlling authority and thereby treat it "positively. " Second, the Court can "negatively" interpret a precedent by, for instance, distinguishing, limiting, or overrul- ing it. Each of the latter forms of legal interpretation casts doubt on an opinion by avoiding application of the legal rule by finding it inapplicable, by restating a legal rule in a more limited way, or by declaring that the rule is no longer binding law (see Murphy & Pritchett 1979:491-95).
Third, the Justices can choose not to legally interpret a precedent in an opinion.A precedent is the decision of a court that is used as an authority for reaching the same decision in a later case. Judicial precedent or binding precedent often referred to as case law, is one of the main sources of English Law. In any good decision making process consistency will play an enormous role, which means like cases should be treated alike. A courts decision shall be consistent with decisions in previous cases and therefore providing certainty for future cases so that people will arrange their affairs relying on the courts opinion .The doctrine of binding precedent is based on the Latin maxim "Stare decesis et non quieta movere" which loosely translated means, stand by what has been decided and do not unsettle the established.
The doctrine of precedent is that of stare decisis (standing by previously decided rules of law). It only applies to rules of law decided in superior courts, is applicable to all future cases, and is immediately operational. In the legal arena, therefore, stare decisis is essentially the doctrine of precedent, whereby courts rely on previously decided cases to guide their rulings in cases before them.The reasons which underlie this rule are stated by Chancellor KENT, in a much quoted passage from the Commentaries, as follows: "A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case.If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed.
It is by the notoriety and stability of such rules that professional men can give safe advice to those who consult them; and people in general can venture with confidence to buy and trust, and to deal with each other.If judicial decisions were to be lightly disregarded, we should disturb and unsettle the great landmarks of property. When a rule has been once deliberately adopted and declared, it ought not to be disturbed, unless by a court of appeal or review, and never by the same court, except for very cogent reasons, and upon a clear manifestation of error; and if the prac- tice were otherwise, it would be leaving us in a state of perplexing uncertainty as to the law:" Precedents may be persuasive or binding. To be binding the precedent must satisfy two conditions.Firstly, it must be contained within the ratio decidendi. Ratio decidendi is the legal reason for deciding the case.
Secondly, it must be a decision made by a higher or in some cases, the same court. If a precedent is not contained in the ratio, then no matter what court it was made in, it is not binding, merely persuasive. Such precedents are termed obiter dicta In essence, any 'rule' of law that does not satisfy both of the conditions above is a persuasive precedent. Persuasive precedents should, in general, be followed unless there is a good reason not to do so.Although obiter dicta are not binding, if they were made by a senior judge, they will usually be followed, particularly if the obiter was considered per curiam.
Other sources of persuasive precedents include courts in foreign countries. The system of judicial precedent has long existed, but its modern importance was achieved through reliable reporting, which has only been guaranteed since 1865 (the Public law report), as well as the settled hierarchy of the courts (since 1876). Before this, reports, although often of high quality, could sometimes be unclear or non-existent, making it impossible to rely on any precedent contained within them.The famous statement that a judge "cared not for Espinasse, nor for any other ass", did not apply exclusively to this most maligned of reporters - there were several other reporters the quality of whose reporting was brought into question. For instance, the quality of the Barnardiston, Lowndes, Modern, Carrington and Kirwan reports were brought into question in their time, although with the passage of time, come to be relied upon. The quality of reports have improved with time, and it is probably true to say that any report published after 1800 will be of reasonable accuracy.
Even now, law reporting is imperfect, as important cases remain unreported, since there is no systematic coverage of cases, and hence the development of the law is hindered. A practice statement in 1990 stated that the Law Reports , where there is a choice, to private reports. The House of Lords overruled itself in Conway v. Rimmer 1968 over Duncan v. Cammell, Laird & Co.
1942, in Herrington v. British Railways Board [1972] AC 877 over Addie & Sons v. Dumbreck 1929, in Vestey v. IRC [1979] All ER 225 over Congreve v.
IRC 1948, in R. v. Shivpuri [1986] All ER 334 over Anderton v. Ryan [1985] All ER 355, in R.
v. Howe [1987] All ER 771 over Director of Public Prosecutions for Northern Ireland v. Lynch [1975] AC 653 and in Murphy v. Brentwood District Council 1990 over Anns v. Merton London Borough 1978.Although lower courts do not bind themselves, judges and magistrates are expected to show uniformity of decision, and 'rules' of practice tend to arise.
The High Court, for example, does not bind itself, but there is a reluctance to part from decided cases, particularly in the smaller Divisons where there is a greater intra-curial communication.The House of Lords has, in various decisions, devised a method to identify circumstances in which the doctrine can deviated from. They are as follows. If the reason ceases to exist so does the law - i.
e. change of circumstances justifies overruling. (Cessante ratione cessat ipsa lex) If a new argument has been put forward by counsel (i. e. one that was not considered when the original decision was made) and it is accepted by the Lords. Per incuriam - providing (Secretary of State for Trade and Industry v.
Desai (1991)) that if the decision stood would lead to significant injustice or inconvenience in the administration of justice.If a statute, although not expressly overruling the case forces the principle to be reconsidered. It may be difficult to determine the ratio of a case - if the ratio cannot be discerned, the principle cannot be binding. Since it can be difficult to discover the ratio decidendi of a case, E Wambaugh in his 1894 book Study of Cases, devised the test of inversion, which involves taking the point that you suspect to be the ratio, adding a word so that its meaning is reversed; if the decision would be the same, it is not the ratio decidendi. Note that this method may fail for multiple ratio cases.
Goodhart in Determining the Ratio Decidendi of a Case suggested the following test: If in a case, the facts V, W, and X exist, and if the court finds W and X material but V immaterial and reaches conclusion Y, then in any future case if W and X exist or V, W, and X exist then the conclusion must be Y. If in a future case, W, X, Y, and Z exist and Z is held material, then the first case is not direct authority, but can be used for analogy (material facts are those relevant to the decision - the plaintiff's name, address, appearance, date on which the cause of action took place will generally not be material).
