Our Precedential Court System

1. Our Precedential Court System Stare decisis et non quieta movere: “to stand by precedents and not disturb settled points of law”

2. 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.

3. Advantages: • Litigants perceive that they will be treated fairly. • Lawyers are more likely to be able to predict outcomes. • Judicial resources are conserved by eliminating the need to reinvent solutions.

4. 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.

5. 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.

6. Primary Authority • What are some examples of primary authorities? • Judicial opinions, Statutes and Constitutions.

7. 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.

8. Secondary Authority What are some examples of secondary authority? Law review articles, treatises, restatements of the law, legal periodicals,annotations and legal encyclopedias.

9. 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.

10. 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.

11. 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)

12. Alabama Circuit Courts are bound by • Decisions of The Alabama Court of Appeals and • Decisions of the Alabama Supreme Court

13. Federal District Courts are bound by • Their circuit court of appeals and of • The U.S. Supreme Court

14. 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.

15. 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:

16. The relative level of the issuing court • The date of the opinion • The comparison between what the opinions says and what the court does • The strength of the court’s reasoning • Subsequent treatment by authorities

17. Whether the statements pertaining to your issue are Holding or Dicta • 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

18. Remember! • Primary authority may be mandatory or persuasive. • Secondary authority is never mandatory.