A precedent attaches a specific legal consequence to a detailed presentation of the facts in a case or judicial decision, which is then considered the rule for the decision of a subsequent case that has identical or similar essential facts and is presented before the same or a lower court in the judicial hierarchy. [25] Most state court systems are structured like the federal court system in that they have three levels of courts: the Track Court, the Intermediate Court of Appeals, and a Court of Final Appeals. However, some states have only two levels of courts. States differ in the names they give to their courts, but the courts operate in the same way as the federal system. For example, the state`s highest court (called the “Supreme Court” in some states) binds all lower courts, and intermediate appellate courts bind all trial courts. However, it is important that state courts bind courts only within the geographical boundaries of their state. Therefore, an Indiana Supreme Court decision would only bind Indiana courts, not another state`s state courts. The different roles of jurisprudence in civil law and common law traditions result in differences in the way courts make decisions. Common law courts typically explain in detail the legal basis for their decisions, with citations from previous relevant legislation and judgments, and often an exegesis of broader legal principles. These are called ratio decidendi and constitute a precedent that binds other courts; Other analyses which are not strictly necessary to rule on the present case are called obiter dicta, which have persuasive powers but are not technically binding. In contrast, decisions in civil courts are generally very short,[citation required], concern only laws,[citation required], not very analytical,[citation required] and are based on facts.

[23] The reason for this difference is that these civil courts apply legislative positivism – a form of legal positivism – which asserts that legislation is the only valid source of law because it has been democratically voted; It is therefore not for the judiciary to create laws, but to interpret and apply laws, and its decisions must therefore take this into account. By definition, a case of first impression cannot be decided by a precedent. Since there is no precedent for the court to follow, the court uses the plain language and legislative history of a statute that must be interpreted, the decisions of other jurisdictions, the persuasion and analogies of previous decisions of other courts (which may be superior, peers or lower courts in the hierarchy or other jurisdictions), commentaries and articles by jurists, and the logic and sense of justice inherent in the Court. Although lower courts are theoretically bound by the precedents of higher courts, in practice a judge may believe that justice requires an outcome that deviates from precedents and can distinguish the facts of the individual case on the basis of reasons not included in the binding precedent. On appeal, the Court of Appeal can either adopt the new ground or set it aside on the basis of precedent. On the other hand, if the losing party does not appeal (usually because of the cost of the appeal), the lower court`s decision may remain in force, at least for individual parties. Judges consider two types of precedents: binding or enforceable precedents and persuasive precedents. If the precedents are binding, the courts are required to follow these previous decisions. Therefore, lawyers usually try to use previous cases, which constitute binding precedents, to support their client`s case, as judges are obliged to follow these previous decisions and decide in the same way.

On the other hand, courts are not required to follow convincing precedents, but they can take them into account in determining how courts in other jurisdictions resolve certain legal issues. This also applies to other sources of law. For example, a state court may consider a federal law or regulation to settle a state lawsuit, but these federal laws are only a persuasive authority for the state court. In 1976, Richard Posner and William Landes coined the term “superprecedent” in a paper they wrote about testing the theories of precedents by counting citations. [18] Posner and Landes used this term to describe the influential effect of a cited decision. The term “superprecedent” was then associated with another issue: the difficulty of reversing a decision. [19] In 1992, Rutgers professor Earl Maltz criticized the Supreme Court`s decision in Planned Parenthood v. Casey for arguing that if a party can take control of the Court on an issue of great national importance (as in Roe v. Wade), that party can protect its position from overthrow “by a kind of super-stare decisis.” [20] The controversial notion that certain decisions are virtually immune to overturn, whether or not they have been properly decided, is the idea to which the term “super-stare decisis” usually refers today. Stare decisis is generally not a doctrine used in civil law systems because it violates the legislative-positivist principle that only the legislature can legislate. Instead, the civil law system is based on the doctrine of consistent jurisprudence, according to which previous decisions are very convincing but not legally decisive if a court has decided a coherent line of cases that result in the same participations with sound reasoning. This doctrine is similar to stare decisis in that it requires that a court`s decision tolerate a consistent and predictable outcome.

Theoretically, lower courts are generally not bound by higher court precedents. In practice, the requirement of foreseeability means that lower courts generally submit to the precedent of higher courts. As a result, the precedent is recognized by courts of last instance such as the French Court of Cassation and the Council of State as de facto binding on lower courts. The Supreme Court has final authority over matters of importance in federal law, including the U.S. Constitution. For example, if the Supreme Court says that the First Amendment applies in a certain way to defamation claims, then each court is bound by that precedent in its interpretation of the First Amendment, as it applies to defamation suits. If a lower court judge disagrees with a precedent in a higher court, which the First Amendment should mean, the lower court judge must rule on the binding precedent. Until the higher court modifies the judgment (or the law itself is changed), binding precedent determines the importance of the law. The lower courts are bound by the precedent set by the higher courts in their region.

For example, a federal district court that falls within the geographic boundaries of the Court of Appeals for the Third Circuit (the mid-level court of appeals against decisions of the District Courts of Delaware, New Jersey, Pennsylvania, and the Virgin Islands) is bound by the judgments of the Court of the Third Circuit. but not by decisions of the Ninth District (Alaska, Arizona, California, Guam, Hawaii, Idaho, Montana, Nevada, Northern Mariana Islands, Oregon, and Washington), because circuit courts of appeals are geographically regulated. Circuit courts of appeal can interpret the law as they wish, as long as there is no binding precedent from the Supreme Court. One of the most common reasons the Supreme Court grants certiorari (i.e., it agrees to hear a case) is when there is a dispute between district courts over the meaning of a federal law. Originalists differ in the extent to which they bend to precedents. During his confirmation hearings, Justice Clarence Thomas responded to a question from Senator Strom Thurmond, relativizing his desire to change precedents in this way: Three elements are necessary for a precedent to work. First, the hierarchy of courts must be accepted and an effective system of legal relations must be created. “A balance must be struck between, on the one hand, the need for legal certainty arising from the binding effect of earlier decisions and, on the other, avoiding an undue restriction on the proper development of the law (1966 Practice Statement [Judicial Precedent] by Lord Gardiner L.C.)]. Several rules can make a decision considered a narrow “precedent” to exclude the future legal positions of case-specific parties, even if a decision does not set a precedent for all other parties. Given the important purposes served by the principle of stare decisis, it is no exaggeration to say, as the Supreme Court did two terms ago in Kimble v. Marvel Entertainment, LLC Enterprises Inc., that it is a “cornerstone of the rule of law.” Therefore, before departing from the precedents, the Court has identified a number of considerations that it will take into account – and each rules against the annulment of Abood.

Abood is an ancient and very well-established precedent, and its repeal would significantly disrupt the legal ecosystem that has emerged around it. For example, the principle underlying Abood, namely that the government has significant flexibility with respect to citizen employees, also supports Pickering v.