STARE DECISIS

Lat. "to stand by that which is decided." The principal that the precedent decisions are to be followed by the courts.
To abide or adhere to decided cases. It is a general maxim that when a point has been settled by decision, it forms a
precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon,
for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many
hundreds of such overruled cases may be found in the American and English books of reports.
An appeal court's panel is "bound by decisions of prior panels unless an en banc decision, Supreme Court decision,
or subsequent legislation undermines those decisions." United States v. Washington, 872 F.2d 874, 880 (9th Cir.
1989).Although the doctrine of stare decisis does not prevent reexamining and, if need be, overruling prior
decisions, "It is . . . a fundamental jurisprudential policy that prior applicable precedent usually must be followed
even though the case, if considered anew, might be decided differently by the current justices. This policy . . . 'is
based on the assumption that certainty, predictability and stability in the law are the major objectives of the legal
system; i.e., that parties should be able to regulate their conduct and enter into relationships with reasonable
assurance of the governing rules of law.'" (Moradi-Shalal v. Fireman's Fund Ins. Companies (1988) 46 Cal.3d 287,
296.) Accordingly, a party urging overruling a precedent faces a rightly onerous task, the difficulty of which is
roughly proportional to a number of factors, including the age of the precedent, the nature and extent of public and
private reliance on it, and its consistency or inconsistency with other related rules of law.
Precedent
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(Redirected from Stare decisis)
Not to be confused with precedence.
In common law legal systems, a precedent or authority is a principle or rule established in a previous legal
case that is either binding on or persuasive for a court or other tribunal when deciding subsequent cases with similar
issues or facts. The general principle in common law legal systems is that similar cases should be decided so as to
give similar and predictable outcomes, and the principle of precedent is the mechanism by which that goal is
attained. Black's Law Dictionary defines "precedent" as a "rule of law established for the first time by a court for a
particular type of case and thereafter referred to in deciding similar cases."[1] Common law precedent is a third kind
of law, on equal footing with statutory law (statutes and codes enacted by legislative bodies), and regulatory
law (regulations promulgated by executive branch agencies).
Stare decisis (Anglo-Latin pronunciation: /stri dsass/) is a legal principle by which judges are obliged to
respect the precedent established by prior decisions. The words originate from the phrasing of the principle in
the Latin maxim Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed."[2] In a
legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled
matters.[2]
Case law is the set of existing rulings which have made new interpretations of law and, therefore, can be cited as
precedent. In most countries, including most European countries, the term is applied to any set of rulings on law
which is guided by previous rulings, for example, previous decisions of a government agency - that is, precedential
case law can arise from either a judicial ruling or a ruling of an adjudication within an executive branch agency.
Trials and hearings that do not result in written decisions of a court of record do not create precedent for future court
decisions.[3]
Principle[edit]
The principle of stare decisis can be divided into two components.
The first is the rule that a decision made by a superior court, or by the same court in an earlier decision, is binding
precedent that the court itself and all its inferior courts are obligated to follow. The second is the principle that a
court should not overturn its own precedent unless there is a strong reason to do so and should be guided by
principles from lateral and inferior courts. The second principle, regarding persuasive precedent, is an advisory one
that courts can and do ignore occasionally.[4]
Case law in common law systems[edit]
In the common law tradition, courts decide the law applicable to a case by interpreting statutes and applying
precedent which record how and why prior cases have been decided. Unlike most civil law systems, common
law systems follow the doctrine of stare decisis, by which most courts are bound by their own previous decisions in
similar cases, and all lower courts should make decisions consistent with previous decisions of higher courts. [5] For
example, in England, the High Court and the Court of Appeal are each bound by their own previous decisions, but
the Supreme Court of the United Kingdom is able to deviate from its earlier decisions, although in practice it rarely
does so.
Generally speaking, higher courts do not have direct oversight over the lower courts of record, in that they cannot
reach out on their own initiative (sua sponte) at any time to overrule judgments of the lower courts. Normally, the
burden rests with litigants to appeal rulings (including those in clear violation of established case law) to the higher
courts. If a judge acts against precedent and the case is not appealed, the decision will stand.
A lower court may not rule against a binding precedent, even if it feels that it is unjust; it may only express the hope
that a higher court or the legislature will reform the rule in question. If the court believes that developments or trends
in legal reasoning render the precedent unhelpful, and wishes to evade it and help the law evolve, it may either hold
that the precedent is inconsistent with subsequent authority, or that it should be distinguished by some material
difference between the facts of the cases. If that judgment goes to appeal, the appellate court will have the

opportunity to review both the precedent and the case under appeal, perhaps overruling the previous case law by
setting a new precedent of higher authority. This may happen several times as the case works its way through
successive appeals. Lord Denning, first of the High Court of Justice, later of the Court of Appeal, provided a famous
example of this evolutionary process in his development of the concept of estoppel starting in the High
Trees case: Central London Property Trust Ltd v. High Trees House Ltd [1947] K.B. 130.
Judges may refer to various types of persuasive authority to reach a decision in a case. Widely cited non-binding
sources include legal encyclopedias such as Corpus Juris Secundum andHalsbury's Laws of England, or the
published work of the Law Commission or the American Law Institute. Some bodies are given statutory powers to
issue Guidance with persuasive authority or similar statutory effect, such as the Highway Code.
In federal or multi-jurisdictional law systems there may exist conflicts between the various lower appellate courts.
Sometimes these differences may not be resolved and it may be necessary to distinguish how the law is applied in
one district, province, division or appellate department. Usually only an appeal accepted by the court of last
resort will resolve such differences and, for many reasons, such appeals are often not granted.
Any court may seek to distinguish its present case from that of a binding precedent, in order to reach a different
conclusion. The validity of such a distinction may or may not be accepted on appeal. An appellate court may also
propound an entirely new and different analysis from that of junior courts, and may or may not be bound by its own
previous decisions, or in any case may distinguish them on the facts.
Where there are several members of a court, there may be one or more judgments given; only the ratio decidendi of
the majority can constitute a binding precedent, but all may be cited as persuasive, or their reasoning may be
adopted in argument. Quite apart from the rules of precedent, the weight actually given to any reported judgment
may depend on the reputation of both the reporter and the judges.
Type of precedent[edit]
Verticality[edit]
Generally, a common law court system has trial courts, intermediate appellate courts and a supreme court. The
inferior courts conduct almost all trial proceedings. The inferior courts are bound to obey precedent established by
the appellate court for their jurisdiction, and all supreme court precedent.
The Supreme Court of California's explanation of this principle is that
[u]nder the doctrine of stare decisis, all tribunals exercising inferior jurisdiction are required to follow decisions of
courts exercising superior jurisdiction. Otherwise, the doctrine ofstare decisis makes no sense. The decisions of this
court are binding upon and must be followed by all the state courts of California. Decisions of every division of
the District Courts of Appeal are binding upon all the justice and municipal courts and upon all the superior courts of
this state, and this is so whether or not the superior court is acting as a trial or appellate court. Courts exercising
inferior jurisdiction must accept the law declared by courts of superior jurisdiction. It is not their function to attempt
to overrule decisions of a higher court.[6]
Appellate courts are only bound to obey supreme court decisions.
The application of the doctrine of stare decisis from a superior court to an inferior court is sometimes called vertical
stare decisis.
However, in federal systems the division between federal and local law may result in complex interactions. For
example, state courts in the United States are not considered inferior to federal courts but rather constitute a parallel
court system. While state courts must follow decisions of the United States Supreme Court on issues of federal
law, federal courts must follow decisions of the courts of each state on issues of that state's law. If there is no
decision on point from the highest court of a state, the federal courts must either attempt to predict how the state
courts would resolve the issue, by looking at decisions from state appellate courts at all levels, or, if allowed by the
constitutions of the relevant states, consult the state supreme courts. Decisions of the lower federal courts (i.e. the
federal circuit courts and district courts) are not binding on any state courts, meaning that interpretations of certain
federal statutes can and occasionally have diverged depending upon whether the forum is state or federal. In
practice, however, judges in one system will almost always choose to follow relevant case law in the other system to
prevent divergent results and to minimize forum shopping.
Horizontality[edit]
The idea that a judge is bound by (or at least should respect) decisions of earlier judges of similar or coordinate level
is called horizontal stare decisis.
In the United States federal court system, the intermediate appellate courts are divided into "circuits". Each panel of
judges on the court of appeals for a circuit is bound to obey the prior appellate decisions of the same circuit.[citation
needed]
Precedent of a United States court of appeals may be overruled only by the court en banc, that is, a session of
all the active appellate judges of the circuit, or by the United States Supreme Court.
When a court binds itself, this application of the doctrine of precedent is sometimes called horizontal stare decisis.
The State of New York has a similar appellate structure as it is divided into fourappellate departments supervised by
the final New York State Court of Appeals. Decisions of one appellate department are not binding upon another, and
in some cases the departments differ considerably on interpretations of law.
Binding precedent[edit]
Precedent that must be applied or followed is known as binding precedent (alternately metaphorically
precedent, mandatory or binding authority, etc.). Under the doctrine of stare decisis, a lower court must honor
findings of law made by a higher court that is within the appeals path of cases the court hears. In state and federal
courts in the United States of America, jurisdiction is often divided geographically among local trial courts, several
of which fall under the territory of a regional appeals court. All appellate courts fall under a highest court
(sometimes but not always called a "supreme court"). By definition, decisions of lower courts are not binding on
courts higher in the system, nor are appeals court decisions binding on local courts that fall under a different appeals
court. Further, courts must follow their own proclamations of law made earlier on other cases, and honor rulings
made by other courts in disputes among the parties before them pertaining to the same pattern of facts or events,
unless they have a strong reason to change these rulings (see Law of the case re: a court's previous holding being
binding precedent for that court).
In law, a binding precedent (also mandatory precedent or binding authority) is a precedent which must be
followed by all lower courts under common law legal systems. In English law it is usually created by the decision of
a higher court, such as the Supreme Court of the United Kingdom, which took over the judicial functions of the
House of Lords in 2009. In Civil law and pluralistsystems precedent is not binding but case law is taken into account
by the courts.

Binding precedent relies on the legal principle of stare decisis. Stare decisis means to stand by things decided. It
ensures certainty and consistency in the application of law. Existing binding precedent from past cases are applied in
principle to new situations by analogy.
One law professor has described mandatory precedent as follows:
Given a determination as to the governing jurisdiction, a court is "bound" to follow a precedent of that
jurisdiction only if it is directly in point. In the strongest sense, "directly in point" means that: (1) the
question resolved in the precedent case is the same as the question to be resolved in the pending case, (2)
resolution of that question was necessary to the disposition of the precedent case; (3) the significant facts of
the precedent case are also presented in the pending case, and (4) no additional facts appear in the pending
case that might be treated as significant.[7]
In extraordinary circumstances a higher court may overturn or overrule mandatory precedent, but will often
attempt to distinguish the precedent before overturning it, thereby limiting the scope of the precedent.
Under the U.S. legal system, courts are set up in a hierarchy. At the top of the federal or national system is the
Supreme Court, and underneath are lower federal courts. The state court systems have hierarchy structures
similar to that of the federal system.
The U.S. Supreme Court has final authority on questions about the meaning of federal law, including the U.S.
Constitution. For example, when the Supreme Court says that the First Amendment applies in a specific way to
suits for slander, then every court is bound by that precedent in its interpretation of the First Amendment as it
applies to suits for slander. If a lower court judge disagrees with a higher court precedent on what the First
Amendment should mean, the lower court judge must rule according to the binding precedent. Until the higher
court changes the ruling (or the law itself is changed), the binding precedent is authoritative on the meaning of
the law.
Although state courts are not part of the federal system, they are also bound by U.S. Supreme Court rulings on
federal law. State courts are not generally bound by Federal District courts or Circuit courts, however.[8][9] A
federal court interpreting state law is bound by prior decisions of the state supreme court. [10]
Lower courts are bound by the precedent set by higher courts within their region. Thus, a federal district court
that falls within the geographic boundaries of the Third Circuit Court of Appeals is bound by rulings of the
Third Circuit Court, but not by rulings in the Ninth Circuit, since the Circuit Courts of Appeals have
jurisdiction defined by geography. The Circuit Courts of Appeals can interpret the law how they want, so long
as there is no binding Supreme Court precedent. One of the common reasons the Supreme Court
grants certiorari (that is, they agree to hear a case) is if there is a conflict among the circuit courts as to the
meaning of a federal law.
There are three elements needed for a precedent to work. Firstly, the hierarchy of the courts needs to be
accepted, and an efficient system of law reporting. 'A balance must be struck between the need on one side for
the legal certainty resulting from the binding effect of previous decisions, and on the other side the avoidance of
undue restriction on the proper development of the law (1966 Practice Statement (Judicial Precedent) by Lord
Gardiner L.C.)'.
Binding precedent in English law[edit]
Judges are bound by the law of binding precedent in England and Wales and other common law jurisdictions.
This is a distinctive feature of the English legal system. In Scotland and many countries throughout the world,
particularly in mainland Europe, civil law means that judges take case law into account in a similar way, but are
not obliged to do so and are required to consider the precedent in terms of principle. Their fellow judges'
decisions may be persuasive but are not binding. Under the English legal system, judges are not necessarily
entitled to make their own decisions about the development or interpretations of the law. They may be bound by
a decision reached in a previous case. Two facts are crucial to determining whether a precedent is binding:
1. The position in the court hierarchy of the court which decided the precedent, relative to the position in
the court trying the current case.
2. Whether the facts of the current case come within the scope of the principle of law in previous
decisions.
Super stare decisis[edit]
Super-stare decisis is a term used for important precedent that is resistant or immune from being overturned,
without regard to whether correctly decided in the first place. It may be viewed as one extreme in a range of
precedential power,[11] or alternatively, to express a belief, or a critique of that belief, that some decisions should
not be overturned.
In 1976, Richard Posner and William Landes coined the term "super-precedent," in an article they wrote about
testing theories of precedent by counting citations.[12] Posner and Landes used this term to describe the
influential effect of a cited decision. The term "super-precedent" later became associated with different issue:
the difficulty of overturning a decision.[13] In 1992, Rutgers professor Earl Maltz criticized the Supreme Court's
decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on
an issue of major national importance (as in Roe v. Wade), that side can protect its position from being reversed
"by a kind of super-stare decisis."[14] The controversial idea that some decisions are virtually immune from
being overturned, regardless of whether they were decided correctly in the first place, is the idea to which the
term "super stare decisis" now usually refers.
The concept of super-stare decisis (or "super-precedent") was mentioned during the interrogations of Chief
Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Prior to the
commencement of the Roberts hearings, the chair of that committee, Senator Arlen Specter of Pennsylvania,
wrote an op/ed in the New York Times referring to Roe as a "super-precedent." He revisited this concept during
the hearings, but neither Roberts nor Alito endorsed the term or the concept.[15]
Advantages and disadvantages
There are advantages and disadvantages of binding precedent. The advantages include: certainty, consistency,
preciseness, and time-saving. The disadvantages include: rigidity, complexity, illogical reasoning (the differences
between some cases may be very small and appear illogical), and slow to grow (some areas of the law are unclear or
in need of reform).[citation needed]
Persuasive precedent[edit]
Persuasive precedent (also persuasive authority or advisory precedent) is precedent or other legal writing that is
not binding precedent but that is useful or relevant and that may guide the judge in making the decision in a current

case. Persuasive precedent includes cases decided by lower courts, by peer or higher courts from other geographic
jurisdictions, cases made in other parallel systems (for example, military courts, administrative courts,
indigenous/tribal courts, state courts versus federal courts in the United States), statements made in dicta, treatises or
academic law reviews, and in some exceptional circumstances, cases of other nations, treaties, world judicial bodies,
etc.
In a case of first impression, courts often rely on persuasive precedent from courts in other jurisdictions that have
previously dealt with similar issues. Persuasive precedent may become binding through its adoption by a higher
court.
In Civil law and pluralist systems, as under Scots law, precedent is not binding but case law is taken into account by
the courts.
Lower courts[edit]
A lower court's opinion may be considered as persuasive authority if the judge believes they have applied the correct
legal principle and reasoning.
Higher courts in other circuits[edit]
A court may consider the ruling of a higher court that is not binding. For example, a district court in the United
States First Circuit could consider a ruling made by the United States Court of Appeals for the Ninth Circuit as
persuasive authority.
Horizontal courts[edit]
Courts may consider rulings made in other courts that are of equivalent authority in the legal system. For example,
an appellate court for one district could consider a ruling issued by an appeals court in another district.
Statements made in obiter dicta[edit]
Courts may consider obiter dicta in opinions of higher courts. Dicta of a higher court, though not binding, will often
be persuasive to lower courts.
The obiter dicta is usually translated as "other things said", but due to the high number of judges and several
personal decisions, it is often hard to distinguish from the ratio decidendi (reason for the decision).
For this reason, the obiter dicta may usually be taken into consideration.
Dissenting opinions[edit]
A case decided by a multi-judge panel could result in a split decision. While only the majority opinion is considered
precedential, an outvoted judge can still publish a dissenting opinion. A judge in a subsequent case, particularly in a
different jurisdiction, could find the dissenting judge's reasoning persuasive. In the jurisdiction of the original
decision, however, a judge should only overturn the holding of a court lower or equivalent in the hierarchy. A district
court, for example, could not rely on a Supreme Court dissent as a rationale for ruling on the case at hand.
Treatises, restatements, law review articles[edit]
Courts may consider the writings of eminent legal scholars in treatises, restatements of the law, and law reviews.
The extent to which judges find these types of writings will vary widely with elements such as the reputation of the
author and the relevance of the argument
Courts in other jurisdictions[edit]
An English court might cite judgments from countries that share the English common law tradition. These include
other Commonwealth states (for example Canada, Australia, or New Zealand) and, to some extent, the United States
(most often where the American courts have been particularly innovative, e.g. in product liability and certain areas
of contract law).
It is controversial whether it is appropriate for a U.S. court to consider foreign law or precedent. The Supreme Court
splits on this issue. In Atkins v. Virginia, for example, the majority cited the fact that the European Union forbids the
death penalty as part of their reasoning, while Chief Justice Rehnquist denounced the "Court's decision to place
weight on foreign laws." The House of Representatives passed a nonbinding resolution criticizing the citing of
foreign law and "reaffirming American independence."[citation needed] However, it is relatively uncontroversial for
American state courts to rely on English decisions for matters of pure common (i.e. judge-made) law; this was most
common through the 19th and early 20th century, until the growing body of American law made the practice of
referring to England increasingly unnecessary.
Within the federalist legal systems of several common-law countries, and most especially the United States, it is
relatively common for the distinct lower-level judicial systems (e.g. state courts in the United States and Australia,
provincial courts in Canada) to regard the decisions of other jurisdictions within the same country as persuasive
precedent. Particularly in the United States, the adoption of a legal doctrine by a large number of other state
judiciaries is regarded as highly persuasive evidence of the general preferability of that doctrine; a good example is
the adoption ofcomparative negligence (replacing contributory negligence as a complete bar to recovery)
in Tennessee by the 1992 Tennessee Supreme Court decision McIntyre v. Balentine (by which point all US
jurisdictions save Tennessee, five other states, and the District of Columbia had adopted comparative negligence
schemes). Moreover, in American law, the Erie doctrine requires federal courts sitting in diversity actions to apply
state substantive law, but in a manner consistent with how the court believes the state's highest court would rule in
that case. Since such decisions are not binding on state courts, but are often very well-reasoned and useful, state
courts cite federal interpretations of state law fairly often as persuasive precedent, although it is also fairly common
for a state high court to reject a federal court's interpretation of its jurisprudence.
Contrasting role of case law in common law, civil law, and mixed systems[edit]
The different roles of case law in civil law and common law traditions create differences in the way that courts
render decisions. Common law courts generally explain in detail the legal rationale behind their decisions, with
citations of both legislation and previous relevant judgments, and often an exegesis of the wider legal principles. The
necessary analysis (called ratio decidendi), then constitutes a precedent binding on other courts; further analyses not
strictly necessary to the determination of the current case are called obiter dicta, which constitute persuasive
authority but are not technically binding. By contrast, decisions in civil law jurisdictions are generally very short,
referring only to statutes. The reason for this difference is that these civil law jurisdictions adhere to a tradition that
the reader should be able to deduce the logic from the decision and the statutes, so that, in some cases, it is
somewhat difficult to apply previous decisions to the facts presented in future cases.
Some pluralist systems, such as Scots law in Scotland and so-called civil law jurisdictions in Quebec and Louisiana,
do not precisely fit into the dual "common-civil" law system classifications. Such systems may have been heavily
influenced by the Anglo-American common law tradition; however, their substantive law is firmly rooted in the civil

law tradition. Because of their position between the two main systems of law, these types of legal systems are
sometimes referred to as "mixed" systems of law.
Law professors in common law traditions play a much smaller role in developing case law than professors in civil
law traditions. Because court decisions in civil law traditions are brief and not amenable to establishing precedent,
much of the exposition of the law in civil law traditions is done by academics rather than by judges; this is
called doctrine and may be published in treatises or in journals such as Recueil Dalloz in France.
Historically, common law courts relied little on legal scholarship; thus, at the turn of the twentieth century, it was
very rare to see an academic writer quoted in a legal decision (except perhaps for the academic writings of
prominent judges such as Coke and Blackstone). Today academic writers are often cited in legal argument and
decisions as persuasive authority; often, they are cited when judges are attempting to implement reasoning that other
courts have not yet adopted, or when the judge believes the academic's restatement of the law is more compelling
than can be found in precedent. Thus common law systems are adopting one of the approaches long common in civil
law jurisdictions.
Critical analysis of precedent[edit]
Court formulations[edit]
The United States Court of Appeals for the Third Circuit has stated:
A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or
judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case
involving identical or similar material facts and arising in the same court or a lower court in the judicial
hierarchy.[16]
The United States Court of Appeals for the Ninth Circuit has stated:
Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis
et non quieta movere "to stand by and adhere to decisions and not disturb what is settled." Consider the
word "decisis." The word means, literally and legally, the decision. Under the doctrine of stare decisis a
case is important only for what it decides for the "what," not for the "why," and not for the "how."
Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal
consequence following a detailed set of facts.[17]
Justice McHugh of the High Court of Australia in relation to precedence remarked in Perre v Apand:
[T]hat is the way of the common law, the judges preferring to go 'from case to case, like the ancient
Mediterranean mariners, hugging the coast from point to point, and avoiding the dangers of the open sea of
system or science
Academic study[edit]
Precedent viewed against passing time can serve to establish trends, thus indicating the next logical
step in evolving interpretations of the law. For instance, if immigration has become more and more
restricted under the law, then the next legal decision on that subject may serve to restrict it further still.
Scholars have recently attempted to apply network theory to precedent in order to establish which
precedent is most important or authoritative, and how the court's interpretations and priorities have
changed over time.[18]
Application[edit]
Development[edit]
Early English common law did not have or require the stare decisis doctrine for a range of legal and
technological reasons:
During the formative period of the common law, the royal courts constituted only one among
many fora in which in the English could settle their disputes. The royal courts operated alongside
and in competition with ecclesiastic, manorial, urban, mercantile, and local courts.
Royal courts were not organised into a hierarchy, instead different royal courts (exchequer,
common pleas, king's bench, and chancery) were in competition with each other.
Substantial law on almost all matters was neither legislated nor codified, eliminating the need for
courts to interpret legislation.
Common law's main distinctive features and focus were not substantial law, which was
customary law, but procedural.
The practice of citing previous cases was not to find binding legal rules but as evidence of
custom.
Customary law was not a rational and consistent body of rules and does not require a system of
binding precedent.
Before the printing press, the state of the written records of cases rendered the stare decisis
doctrine utterly impracticable.
These features changed over time, opening the door to the doctrine of stare decisis:
By the end of the eighteenth century, the common law courts had absorbed most of the
business of their nonroyal competitors, although there was still internal competition among
the different common law courts themselves. During the nineteenth century, legal reform
movements in both England and the United States brought this to an end as well by merging
the various common law courts into a unified system of courts with a formal hierarchical
structure. This and the advent of reliable private case reporters made adherence to the
doctrine of stare decisis practical and the practice soon evolved of holding judges to be
bound by the decisions of courts of superior or equal status in their jurisdiction.[19]
U.S. legal system[edit]
In the United States, which uses a common law system in its state courts and to a lesser extent in its
federal courts, the Ninth Circuit Court of Appeals has stated:
Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation
of stare decisis et quieta non movere "to stand by and adhere to decisions and not disturb
what is settled." Consider the word "decisis." The word means, literally and legally, the
decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor
is the doctrine stare rationibus decidendi "to keep to the rationes decidendi of past cases."
Rather, under the doctrine of stare decisis a case is important only for what it decides for

the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare
decisis is important only for the decision, for the detailed legal consequence following a
detailed set of facts.[20]
In other words, stare decisis applies to the holding of a case, rather than to obiter dicta ("things said by
the way"). As the United States Supreme Court has put it: "dicta may be followed if sufficiently
persuasive but are not binding."[21]
In the United States Supreme Court, the principle of stare decisis is most flexible in constitutional
cases:
Stare decisis is usually the wise policy, because in most matters it is more important that the
applicable rule of law be settled than that it be settled right. ... But in cases involving the
Federal Constitution, where correction through legislative action is practically impossible,
this Court has often overruled its earlier decisions. ... This is strikingly true of cases under the
due process clause.
Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406407, 410 (1932) (Brandeis, J.,
dissenting).[22]
For example, in the years 19461992, the U.S. Supreme Court reversed itself in about 130 cases.
[23]
The U.S. Supreme Court has further explained as follows:
[W]hen convinced of former error, this Court has never felt constrained to follow precedent.
In constitutional questions, where correction depends upon amendment, and not upon
legislative action, this Court throughout its history has freely exercised its power to
reexamine the basis of its constitutional decisions.
Smith v. Allwright, 321 U.S. 649, 665 (1944).[24]
The United States Supreme Court has stated that where a court gives multiple reasons for a given
result, each alternative reason that is "explicitly" labeled by the court as an "independent" ground for
the decision is not treated as "simply a dictum."[25]
English legal system[edit]
The doctrine of binding precedent or stare decisis is basic to the English legal system, and to the legal
systems that derived from it such as those of Australia, Canada, Hong Kong, New
Zealand,Pakistan, Singapore, Malaysia and South Africa. A precedent is a statement made of the law
by a Judge in deciding a case. The doctrine states that within the hierarchy of the English courts a
decision by a superior court will be binding on inferior courts. This means that when judges try cases
they must check to see if similar cases have been tried by a court previously. If there was a precedent
set by an equal or superior court, then a judge should obey that precedent. If there is a precedent set
by an inferior court, a judge does not have to follow it, but may consider it. The Supreme Court
(previously the House of Lords) however does not have to obey its own precedent.
Only the statements of law are binding. This is known as the reason for the decision or ratio
decidendi. All other reasons are "by the way" or obiter dictum. See Rondel v. Worsley [1969] 1 AC
191. A precedent does not bind a court if it finds there was a lack of care in the original "Per
Incuriam". For example, if a statutory provision or precedent had not been brought to the previous
court's attention before its decision, the precedent would not be binding. Also, if a court finds a
material difference between cases then it can choose not to be bound by the precedent. Persuasive
precedent includes decisions of courts lower in the hierarchy. They may be persuasive, but are not
binding. Most importantly, precedent can be overruled by a subsequent decision by a superior court or
by an Act of Parliament.
Last resort and strict stare decisis in Scotland[edit]
The British House of Lords, as the court of last appeal outside Scotland before the creation of the UK
Supreme Court, was not strictly bound to always follow its own decisions until the caseLondon Street
Tramways v London County Council [1898] AC 375. After this case, once the Lords had given a
ruling on a point of law, the matter was closed unless and until Parliament made a change by statute.
This is the most strict form of the doctrine of stare decisis (one not applied, previously, in common
law jurisdictions, where there was somewhat greater flexibility for a court of last resort to review its
own precedent).
This situation changed, however, after the issuance of the Practice Statement of 1966. It enabled the
House of Lords to adapt English law to meet changing social conditions. In R v G & R 2003, the
House of Lords overruled its decision in Caldwell 1981, which had allowed the Lords to
establish mens rea ("guilty mind") by measuring a defendant's conduct against that of a "reasonable
person," regardless of the defendant's actual state of mind.
However, the Practice Statement has been seldom applied by the House of Lords, usually only as a
last resort. As of 2005, the House of Lords has rejected its past decisions no more than 20 times. [citation
needed]
They are reluctant to use it because they fear to introduce uncertainty into the law. In particular,
the Practice Statement stated that the Lords would be especially reluctant to overrule themselves in
criminal cases because of the importance of certainty of that law. The first case involving criminal law
to be overruled with the Practice Statement was Anderton v Ryan(1985), which was overruled by R v
Shivpuri (1986), two decades after the Practice Statement. Remarkably, the precedent overruled had
been made only a year before, but it had been criticised by several academic lawyers. As a result, Lord
Bridge stated he was "undeterred by the consideration that the decision in Anderton v Ryan was so
recent. The Practice Statement is an effective abandonment of our pretention to infallibility. If a
serious error embodied in a decision of this House has distorted the law, the sooner it is corrected the
better."[26] Still, the House of Lords has remained reluctant to overrule itself in some cases; in R v
Kansal (2002), the majority of House members adopted the opinion that R v Lambert had been
wrongly decided and agreed to depart from their earlier decision.
Interpretation[edit]
Main article: Statutory interpretation
Judges in the U.K use three primary rules for interpreting the law. The normal aids that a judge has include access to
all previous cases in which a precedent has been set, and a good English dictionary.

Under the literal rule, the judge should do what the actual legislation states rather than trying to do what the judge
thinks that it means. The judge should use the plain everyday ordinary meaning of the words, even if this produces
an unjust or undesirable outcome. A good example of problems with this method is R v Maginnis (1987) in which
several judges found several different dictionary meanings of the word "supply". Another example might be Fisher
v Bell, where it was held that a shopkeeper who placed an illegal item in a shop window with a price tag did not
make an offer to sell it, because of the specific meaning of "offer for sale" in contract law. As a result of this case,
Parliament amended the statute concerned to end this discrepancy.
The golden rule is used when use of the literal rule would obviously create an absurd result. The court must find
genuine difficulties before it declines to use the literal rule. [verification needed] There are two ways in which the Golden
Rule can be applied: the narrow method, and the broad method. Under the narrow method, when there are
apparently two contradictory meanings to a word used in a legislative provision or it is ambiguous, the least absurd
is to be used. For example, in Adler v George (1964), the defendant was found guilty under the Official Secrets Act
of 1920. The act said it was an offence to obstruct HM Forces in the vicinity of a prohibited place. Mr. Adler argued
that he was not in the vicinity of a prohibited place but was actually in a prohibited place.[27] The court chose not to
accept the wording literally. Under the broad method, the court may reinterpret the law at will when it is clear that
there is only one way to read the statute. This occurred in Re Sigsworth (1935) where a man who murdered his
mother was forbidden from inheriting her estate, despite a statute to the contrary.
The mischief rule is the most flexible of the interpretation methods. Stemming from Heydon's Case (1584), it allows
the court to enforce what the statute is intended to remedy rather than what the words actually say. For example,
in Corkery v Carpenter (1950), a man was found guilty of being drunk in charge of a carriage, although in fact he
only had a bicycle.
In the United States, the courts have stated consistently that the text of the statute is read as it is written, using the
ordinary meaning of the words of the statute.

"[I]n interpreting a statute a court should always turn to one cardinal canon before all others. ... [C]ourts
must presume that a legislature says in a statute what it means and means in a statute what it says
there." Connecticut Nat'l Bank v. Germain, 112 S. Ct. 1146, 1149 (1992). Indeed, "[w]hen the words of a statute
are unambiguous, then, this first canon is also the last: 'judicial inquiry is complete.' "

"A fundamental rule of statutory construction requires that every part of a statute be presumed to have some
effect, and not be treated as meaningless unless absolutely necessary." Raven Coal Corp. v. Absher, 153 Va.
332, 149 S.E. 541 (1929).

"In assessing statutory language, unless words have acquired a peculiar meaning, by virtue of statutory
definition or judicial construction, they are to be construed in accordance with their common usage." Muller v.
BP Exploration (Alaska) Inc., 923 P.2d 783, 78788 (Alaska 1996);
Practical application[edit]
Although inferior courts are bound in theory by superior court precedent, in practice judges may sometimes attempt
to evade precedent by distinguishing it on spurious grounds. The appeal of a decision that does not obey precedent
might not occur, however, as the expense of an appeal may prevent the losing party from doing so. Thus the inferior
court decision may remain in effect even though it does not obey the superior court decision, as the only way a
decision can enter the appeal process is by application of one of the parties bound by it.
Judicial resistance[edit]
Occasionally, the application of prior case law results in court decisions in which the judge explicitly states personal
disagreement with the judgment he or she has rendered, but that he or she is required to do so by binding precedent.
That is, the issue being judged was already decided by a higher court.[28] Note that inferior courts cannot evade
binding precedent of superior courts, but a court can depart from its own prior decisions.[29]
Structural considerations[edit]
In the United States, stare decisis can interact in counterintuitive ways with the federal and state court systems. On
an issue of federal law, a state court is not bound by an interpretation of federal law at the district or circuit level, but
is bound by an interpretation by the United States Supreme Court. On an interpretation of state law,
whether common law or statutory law, the federal courts are bound by the interpretation of a state court of last
resort, and are required normally to defer to the precedent of intermediate state courts as well [citation needed].
Courts may choose to obey precedent of international jurisdictions, but this is not an application of the doctrine
of stare decisis, because foreign decisions are not binding. Rather, a foreign decision that is obeyed on the basis of
the soundness of its reasoning will be called persuasive authority indicating that its effect is limited to the
persuasiveness of the reasons it provides.
Originalism[edit]
Originalism the doctrine that holds that the meaning of a written text must be applied is in tension with stare
decisis, but is not necessarily opposed irrevocably. As noted above, "Stare decisis is not usually a doctrine used
in civil law systems, because it violates the principle that only the legislature may make law"; Justice Antonin
Scalia argues in A Matter of Interpretation that America is a civil law nation, not a common law nation. By
principle, originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with
the Constitution. However, there is still room within an originalist paradigm for stare decisis; whenever the plain
meaning of the text has alternative constructions, past precedent is generally considered a valid guide, with the
qualifier being that it cannot change what the text actually says.
Some originalists may be even more extreme. In his confirmation hearings, Justice Clarence Thomas answered a
question from Senator Strom Thurmond, qualifying his willingness to change precedent in this way:
I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view
that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree
with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in
our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to
reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the
case incorrect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling
that case.
[30]
Possibly he has changed his mind, or there are a very large body of cases which merit "the additional step" of
ignoring the doctrine; according to Scalia, "Clarence Thomas doesn't believe in stare decisis, period. If a
constitutional line of authority is wrong, he would say, let's get it right."[31]

Professor Caleb Nelson, a former clerk for Justice Thomas and law professor at the University of Virginia, has
elaborated on the role of stare decisis in originalist jurisprudence:
American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In
earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's
current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is
roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration
of error is not enough to justify overruling a past decision. ...[T]he conventional wisdom is wrong to suggest that
any coherent doctrine of stare decisis must include a presumption against overruling precedent that the current court
deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to
overrule a past decision simply because they would have reached a different decision as an original matter. But when
a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a
different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created
by the relevant source of law. ... Americans from the Founding on believed that court decisions could help
"liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to
abide by such "liquidations." ... To the extent that the underlying legal provision was determinate, however, courts
were not thought to be similarly bound by precedent that misinterpreted it. ... Of the Court's current members,
Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the
Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions. ...
Prominent journalists and other commentators suggest that there is some contradiction between these Justices'
mantra of "judicial restraint" and any systematic re-examination of precedent. But if one believes in the determinacy
of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can
also speak of fidelity to the texts themselves.
[32]
Pros and cons[edit]
There is much discussion about the virtue or irrationality of using case law in the context of stare decisis. Supporters
of the system, such as minimalists, argue that obeying precedent makes decisions "predictable." For example, a
business person can be reasonably assured of predicting a decision where the facts of his or her case are sufficiently
similar to a case decided previously. This parallels the arguments against retroactive (ex post facto) laws banned by
the U.S. Constitution. An argument often used against the system is that it is undemocratic as it allows judges, which
may or may not be elected, to make law.
A counter-argument (in favor of the concept of stare decisis) is that if the legislature wishes to alter the case law
(other than constitutional interpretations) by statute, the legislature is empowered to do so.[33] Critics sometimes
accuse particular judges of applying the doctrine selectively, invoking it to support precedent that the judge
supported anyway, but ignoring it in order to change precedent with which the judge disagreed.
Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be
subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this
error in interpretation can be propagated and increased by further precedent until a result is obtained that is greatly
different from the original understanding of the Constitution. Stare decisis is not mandated by the Constitution, and
if it causes unconstitutional results then the historical evidence of original understanding can be re-examined. In this
opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedent. See
also the living tree doctrine.
Criticism of precedent[edit]
In a controversial 1997 book, attorney Michael Trotter blamed over-reliance by American lawyers on binding and
persuasive authority, rather than the merits of the case at hand, as a major factor behind the escalation of legal costs
during the 20th century. He argued that courts should ban the citation of persuasive precedent from outside their
jurisdiction, with two exceptions:
(1) cases where the foreign jurisdiction's law is the subject of the case, or
(2) instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding
precedent, and therefore needs to cite persuasive precedent to demonstrate a trend in other jurisdictions. [34]
Civil law systems[edit]
Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the
legislature may make law. However, the civil law system does have jurisprudence constante, which is similar to
Stare decisis and dictates that the Court's decision condone a cohesive and predictable result. In theory, inferior
courts are generally not bound to precedent established by superior courts. In practice, the need for predictability
means that inferior courts generally defer to precedent by superior courts. In a sense, the most superior courts in civil
law jurisdictions, such as the Cour de cassation and the Conseil d'tat in France are recognized as being bodies of a
quasi-legislative nature.
The doctrine of jurisprudence constante also influences how court decisions are structured. In general, court
decisions of common law jurisdictions give a sufficient statement of rationale as to guide future courts. This occurs
to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a
precedent for future cases.
By contrast, court decisions in some civil law jurisdictions (most prominently France) tend to be extremely brief,
mentioning only the relevant legislation and not going into great detail about how a decision was reached. This is the
result of the theoretical view that the court is only interpreting the view of the legislature and that detailed exposition
is unnecessary. Because of this, much more of the exposition of the law is done by academic jurists which provide
the explanations that in common law nations would be provided by the judges themselves.
In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than
in France, and courts will frequently cite previous cases and academic writing. However, some courts (such
as German courts) have less emphasis on the particular facts of the case than common law courts, but have more
emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law
is.
The legal systems of the Nordic countries are sometimes included among the civil law systems, but as a separate
branch, and sometimes counted as separate from the civil law tradition. InSweden, for instance, case law arguably
plays a more important role than in some of the Continental civil law systems. The two highest courts, the Supreme
Court (Hgsta domstolen) and theSupreme Administrative Court (Hgsta frvaltningsdomstolen), have the right to
set precedent which is in practice (however not formally) binding on all future application of the law. Courts of

appeal, both general courts (hovrtter) and administrative courts (kammarrtter) may also issue decisions that act as
guides for the application of the law, but these decisions may be overturned by higher courts.
Precedent is binding if a higher court has made a decision or interpretation that a lower court must follow.
Stare decisis is where a court maintains the status quo - that is, it reaffirms a previous decision or bases a new
decision its own prior decision.
For example (I apologize if this example addresses a touchy subject, but you will cover it in Con Law.)
In Planned Parenthood v. Casey, the US Supreme Court had the opportunity to address Roe v. Wade, which held that
state restrictions on abortion during the first two trimesters of pregnancy violate the 14th Amendment to the
Constitution. They decided to reaffirm Roe's central holding, basing their decision in large part on stare decisis.
This is not because the precedent was binding - the US Supreme Court can overrule itself.
Casey also held that states may not place undue burdens on the right, and that requiring spousal consent is an undue
burden. Therefore, requiring spousal consent violates the Constitution. This is binding precedent on any lower
court and government agency. A Federal Court of Appeals must hold that requiring spousal consent is
unconstitutional.
Regarding the example of previous states. If one state makes a decision about its own state law or on federal laws,
and uses another state's decision as authority, that is an example of neither binding precedent nor stare decisis. It
just means that it found that state court's analysis persuasive.
However, sometimes state X will have to make a ruling on state Y's law, and they must use state Y's interpretation of
the law. But that's a choice of law issue that you may or not cover in Civil Procedure.
Non-Publication Erodes Stare Decisis
OVERVIEW
If justice is to be dispensed even-handedly, similar cases must be decided similarly.
Ad hoc jury decisions that yield unexplained verdicts reflect the self-contained values our jury system
embraces. But appellate adjudication performs a different function and creates different expectations. The
core function of appellate courts is to assure that legal principles derived from the Constitution, statutes
and, in the case of state courts, the common law are applied correctly and consistently.
Stare Decisis requires that a prior decision be followed in subsequent cases unless it is distinguished or
overruled,. The application of the doctrine usually turns on a determination of the identity between two
cases -- a determination that cannot be made unless the facts and reasoning of the prior case are known.
A published opinion enhances predictability. Even if the opinion and does no more than restate existing
legal doctrine, it to show how the doctrine applies to different facts. Publication thus increases certainty by
increasing the stock of precedents.
First, the weight of precedent on a point of law hardens it, making it more difficult to overturn. The sheer
number of affirmations allow attorneys to rely on the stability of a doctrine with greater confidence.
Put a different way: a court can ignore one inconvenient precedent; it rarely ignores a dozen.
Second, later cases help flesh out a precedent, and help to make it more understandable.
Third, the sheer accumulation of a number of seemingly routine decisions on a particular point of law may
suggest to the courts, legal practitioners, scholars, the legislature, or the public that problems exist in this
area. This may set in motion reform.
Fourth, publication furthers an important institutional goal: maintaining the appearance that justice has
been done. Publication is a signal to litigants and observers that court has nothing tied, that the quality of its
work in a case is open for public inspection.
The core values of Stare Decisis are stability, certainty, predictability, consistency, and fidelity to authority.
STARE DECISIS AS A QUALITY CONTROL MECHANISM
Stare Decisis, at its heart, is a quality control mechanism, raising all error for discussion and correction.
Stare Decisis guarantees a consistent level of quality, consistency or reasoning in the law and application of
the law.
Stare Decisis guarantees that all judges will meet the standards of the most conscientious of their brethren.
As such, it raises the quality of law and judicial functions.
Public awareness of Stare Decisis encourages the continual inspection of the law and participation in the
legal process by the public.
THE EROSION OF STARE DECISIS
Conversely, erosion of Stare Decisis creates chaos. It robs even experienced lawyers of the ability to predict
with reasonable certainty the outcome of litigation. This inevitably raises the cost of the legal system and
lowers its legitimacy.
Erosion of Stare Decisis creates random results that inundate the appellate courts. Citation of unpublished
cases, conversely, would permit lower courts (and potential litigants themselves) to have access to
precedents that would clearly decide cases or head off litigation.
Stare Decisis is not threatened by a proliferation of lawsuits: We have more lawsuits and more appellate
rulings these days because our country has more people and more laws and, for those reasons, we have
more judges and more lawsuits.
Non-publication diminishes Stare Decisis twice: first, the decision itself is freed from the responsibility to
reason within the full view. Second, an increment of precedent is rendered unusable.
OPERATIONAL REALITIES
Once an "unpublished" opinion is included in a computer database, it is de facto published.
A lawyer cannot meet his obligations to his client if relevant precedent, as he understands it, is kept from
him.

It is equally unfair to gag a litigant who wants to advise a Court of Appeal that the issue which he now
presents for adjudication has already been passed on, and with what results.
When a court undertakes to write an opinion to explain why it decided the case as it did, it creates a
reasonable expectation, under the respect we accord to precedent, that similar issues will be treated
judicially in the same manner in the future.
The `precedential importance' of an opinion cannot be predetermined by its author. Rather, the attorney
wishing to rely on the opinion in a subsequent matter is in a better position to decide whether the opinion is
worth citing.

THE IMPACT OF NO-CITATION RULES ON STARE DECISIS

"Do not cite" rules place off limits the very stuff of precedent: the reasoning of the court and the
explanation of why it reached the results it did.
"Do not cite " rules seem to be a statement by a court that the reasons for its actions have no meaning or
value. But if we do not know why a court acts, our adjudicatory system will be reduced to a series of
irreconcilable ad hoc judgments.
"Do not cite" rules create a serious risk that similar cases will be decided dissimilarly.
The appellate courts can hardly claim to be carrying out this critical function when they prohibit parties to
appeals from citing precedent that is directly relevant to the issues they are presenting for judicial
resolution.
Stare Decisis cannot operate as a workable doctrine as long the courts, while adjudicating sets of identical
facts, are able to reach directly contrary results on diametrically opposed legal theories, by the simple
expedient of publishing one set of results but not the other.
Stare decisis and techniques of legal reasoning and legal argument
Copyright 1987 Paul M. Perell
Originally published in (1987) 2:2,3 Legal Research Update 11 and republished with permission.

Introduction
It gives away no secret to observe that lawyers have their own unique discipline and approach to the resolution of
legal problems. Not surprisingly, there are laws about determining the law. One of the most important of these laws
is the law of precedent or stare decisis. That doctrine and its significance in practical terms are the subject matters of
this paper. This paper is also about how a lawyer in everyday practice answers a legal question and how that lawyer
evaluates and formulates legal arguments. The paper is only to a very limited extent concerned about the practical
problems of how to find or look up the law; rather, the concern is how a lawyer should deal with the authorities that
he or she finds. Because different legal systems have different approaches to the proper way of deciding a legal
point, the perspective will be Canadian and primarily that of Ontario.
The doctrine of stare decisis
What is the doctrine of precedent or of stare decisis? Professor Gall described it in the following terms:
The operation of the doctrine of stare decisis is best explained by reference to the English translation of the Latin
phrase. Stare decisis literally translates as to stand by decided matters. The phrase stare decisis is itself an
abbreviation of the Latin phrase stare decisis et non quieta movere which translates as to stand by decisions and
not to disturb settled matters.
Basically, under the doctrine of stare decisis, the decision of a higher court within the same provincial jurisdiction
acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another
jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors,
including, first, the nature of the other jurisdiction. Second, the degree of persuasiveness is dependent upon the level
of court which decided the precedent case in the other jurisdiction. Other factors include the date of the precedent
case, on the assumption that the more recent the case, the more reliable it will be as authority for a given
proposition, although this is not necessarily so. And on some occasions, the judges reputation may affect the degree
of persuasiveness of the authority.1
In Learning the Law (9th ed. 1973), Glanville Williams describes the doctrine in practical terms:
What the doctrine of precedent declares is that cases must be decided the same way when their material facts are the
same. Obviously it does not require that all the facts should be the same. We know that in the flux of life all the facts
of a case will never recur, but the legally material facts may recur and it is with these that the doctrine is concerned.
The ratio decidendi [reason of deciding] of a case can be defined as the material facts of the case plus the decision
thereon. The same learned author2 who advanced this definition went on to suggest a helpful formula. Suppose that
in a certain case facts A, B and C exist, and suppose that the court finds that facts B and C are material and fact A
immaterial, and then reaches conclusion X (e.g. judgment for the plaintiff, or judgment for the defendant). Then the

doctrine of precedent enables us to say that in any future case in which facts B and C exist, or in which facts A and B
and C exist the conclusion must be X. If in a future case A, B, C, and D exist, and the fact D is held to be material,
the first case will not be a direct authority, though it may be of value as an analogy.3
It follows from Williams analysis that the addition of fact D to a future case means that conclusion X may or may
not follow. In other words, the presence of a new fact D may have the effect of distinguishing the future case from
the precedent or conversely the precedent may be extended to apply to the future case.
There is considerable literature about whether the doctrine of stare decisis is a good or bad one4 but, the doctrine is
usually justified by arguments which focus on the desirability of stability and certainty in the law and also by
notions of justice and fairness. Benjamin Cardozo in his treatise, The Nature of the Judicial Process stated:
It will not do to decide the same question one way between one set of litigants and the opposite way between
another. If a group of cases involves the same point, the parties expect the same decision. It would be a gross
injustice to decide alternate cases on opposite principles. If a case was decided against me yesterday when I was a
defendant, I shall look for the same judgment today if I am plaintiff. To decide differently would raise a feeling of
resentment and wrong in my breast; it would be an infringement, material and moral, of my rights. 5 Adherence to
precedent must then be the rule rather than the exception if litigants are to have faith in the even-handed
administration of justice in the courts.6
In Sweney v. The Department of Highways,7 Middleton J.A. for the Ontario Court of Appeal stated:
But, in my view, liberty to decide each case as you think right, without regard to principles laid down in previous
similar cases, would only result in a completely uncertain law in which no citizen would know his rights or
liabilities until he knew before what Judge his case would come and could guess what view that Judge would take
on a consideration of the matter, without any regard to previous decisions.8
That the doctrine of stare decisis is related to justice and fairness may be appreciated by considering the observation
of American philosopher William K. Frankena as to what constitutes injustice:
The paradigm case of injustice is that in which there are two similar individuals in similar circumstances and one of
them is treated better or worse than the other. In this case, the cry of injustice rightly goes up against the responsible
agent or group; and unless that agent or group can establish that there is some relevant dissimilarity after all between
the individuals concerned and their circumstances, he or they will be guilty as charged.9
The critics of the doctrine accept it as the general rule but chafe under it when the staleness of old law leads to
unfairness and injustice. For example, Lord Denning, the former Master of the Rolls has argued:
If lawyers hold to their precedents too closely, forgetful of the fundamental principles of truth and justice which they
should serve, they may find the whole edifice comes tumbling down about them. Just as the scientist seeks for truth,
so the lawyer should seek for justice. Just as the scientist takes his instances and from them builds up his general
propositions, so the lawyer should take his precedents and from them build up his general principles. Just as the
propositions of the scientist fail to be modified when shown not to fit all instances, or even discarded when shown in
error, so the principles of the lawyer should be modified when found to be unsuited to the times or discarded when
found to work injustice.10
Stare decisis and the hierarchy of the courts
Keeping with the practical approach of this paper, we will now leave aside this debate and consider the practical
problems of dealing with the doctrine as it exists for the practising lawyer. Let us then consider the example of a
lawyer preparing legal argument for court.
The lawyer will be appearing before a particular court and the first thing that the lawyer must do is to note the rank
of that court in the hierarchy of courts. This is necessary for two reasons: first, because a higher ranking court is not
bound to follow the decision of a lower court and second, because some courts do not apply the rule of stare decisis
with respect to their own prior decisions.
While it might be thought that it would not be difficult to decide this question of ranking, there are in fact some
problems because the hierarchy and the attitude of various courts have changed from time to time. For example, for
Canada, appeals to the Privy Council in criminal matters were abolished in 193311 and it was only in 1949 that all
Canadian appeals to the Privy Council were abolished.12 In Ontario, from 1895 to 1931 but not afterwards, there was
a section of the Judicature Act which obliged a Judge of the High Court not to disregard or depart from a prior
known decision of any other judge of co-ordinate authority on any question of law or practice without his
concurrence.13 Further, perhaps by reason of the abolition of appeals to the Privy Council or perhaps because of the
example of the House of Lords which in 1966 announced that it would reverse itself in proper cases14 or perhaps
because of the maturing of Canadian jurisprudence, the Supreme Court of Canada has relatively recently reassessed

its own position on the effect of its own prior decisions. In light of these changes, the current position for Ontario
jurisprudence appears to be as follows:

The Supreme Court of Canada is not bound to follow its own prior decisions or the decisions of the Privy
Council.15 As Professor Gordon Bale has noted:

The Supreme Court can no longer be content to say that the case is governed by an earlier decision either of its
own or of the Privy Council unless the decision provides the proper reconciliation of the competing interests
which are involved.16

All Canadian courts are bound to follow a precedent of the Supreme Court of Canada17 and any pre-1949
decision of the Privy Council which has not been overruled by the Supreme Court of Canada. A minority opinion
of the Supreme Court of Canada is, however, not binding.18
The Ontario Court of Appeal is not bound to follow a decision of the appellate court of another province. 19
The Ontario Court of Appeal will generally be bound by its own prior decisions unless the liberty of the
subject is involved or unless the prior decision was given per incuriam, that is, inadvertently without
consideration of an applicable authority or statutory provision.20 It should be noted by comparison that appellate
courts in certain other provinces have allowed themselves greater freedom in overruling their own prior
decisions.21
All Ontario provincial courts lower than the Court of Appeal are bound to follow a decision of the Ontario
Court of Appeal.22 A Divisional Court decision as a decision of an intermediate court of appeal would bind lower
courts. (It should be noted that the Divisional Court also sits as a court of first instance.)
All Ontario provincial courts are not bound by the decisions of the appellate courts of other provinces or by
decisions of the Federal Court of Appeal.23
A decision of a court of co-ordinate jurisdiction is not binding24 although where there is conflict it may be
appropriate to refer the case to the Court of Appeal.25 It should be noted that in certain circumstances, the District
Court may have co-ordinate jurisdiction with the High Court and not be obliged to follow the decision of the
otherwise higher court.26 Similarly, it seems that with respect to procedural matters, the Masters Office and the
District Court may be considered to be co-ordinate courts.
While decisions of co-ordinate courts are not binding, these decisions are highly persuasive. This is because
of the concept of judicial comity which is the respect one court holds for the decisions of another. As a concept it
is closely related to stare decisis. In the case of R. v. Nor. Elec. Co.,27McRuer C.J.H.C. stated:

I think Hogg J. stated the right common law principle to be applied in his judgment in Rex ex rel.
McWilliam v. Morris, [1942] O.W.N. 447 at 448-9, where he said: The doctrine of stare decisis is one long
recognized as a principle of our law. Sir Frederick Pollock, in his First Book of Jurisprudence, 6th ed., p. 321:
The decisions of an ordinary superior court are binding on all courts of inferior rank within the same
jurisdiction, and though not absolutely binding on courts of co-ordinate authority nor on the court itself, will be
followed in the absence of strong reason to the contrary.
I think that strong reason to the contrary does not mean a strong argumentative reason appealing to the
particular judge, but something that may indicate that the prior decision was given without consideration of a
statute or some authority that ought to have been followed. I do not think strong reason to the contrary is to be
construed according to the flexibility of the mind of the particular judge.
Legal argument when there is a precedent
Thus noting the court ranking of the judge before whom the lawyer will be appearing and guided by the doctrine of
stare decisis, the lawyer will then prepare his or her argument. Usually, the best position for the lawyer occurs when
there is a precedent case supporting his or her clients case. The lawyer will then argue that the court is either bound,
or that the court, if not actually bound, ought to be persuaded by the precedent case to find in the clients favour. In
his or her research, the lawyer will therefore look for cases with results which support the clients position and the
lawyer will prepare to argue that the ratio decidendi of those precedent cases covers the facts of the case at bar.
However, just locating and evaluating the prospects of precedent cases is not easy since it is often difficult to
determine and articulate the authority of a case. Moreover, skill is necessary to analyze and organize the material
facts of both the precedent case and the case at bar. That said, more difficult problems of legal reasoning and legal
argument occur when the lawyer is unable to find a close case or any case at all or, worse yet, when a case presents
itself which appears to be unfavourable. How does the lawyer deal with these problems?
To get around an apparently unfavourable case, there are a number of tools and techniques available to the lawyer.
The lawyer may not simply ignore the unfavourable case and hope that the other side does not discover the
authority. This is unethical28 and with respect it may be submitted that it is also unethical and intellectually dishonest
for a judge in deciding a case to simply ignore a precedent case which stands in the way of the decision that the
judge wants to make. This is not to say that lawyers and judges must deal with every case that remotely touches on a
subject but only that there should be an honest effort to play by the rules.

The techniques that are available follow as a consequence of accepting and then manipulating the doctrine of stare
decisis. The techniques structure and direct the lawyers legal reasoning and argument. The following are generally
recognized:

The lawyer can argue that the precedent case does not stand for the legal proposition for which it has been
cited. In other words, the lawyer articulates the ratio decidendi of the case differently. An example of this may be
found in the treatment of the case of Rivtow Marine Ltd. v. Washington Iron Works.29 In The Attorney General
for the Province of Ontario v. Fatehi,30 Estey J. without resolving the difficulties associated with this case
observed:

Nonetheless it must be acknowledged that Rivtow has been variously applied or rejected by the courts of this
country, some of whom find in the majority judgment recognition of economic loss and some of whom have
found the opposite.31

The lawyer can argue that while the precedent case does articulate the legal proposition for which it has
been cited, nevertheless the proposition was obiter dicta (things said by the way). Subject to an exception for
considered pronouncements of the law by appellate courts, comments by the judge which are not part of the ratio
decidendi are obiter dicta and are theoretically not binding in a subsequent case.32 The exception is that where an
appellate court expresses a considered opinion on a point of law then such ruling is binding on the lower courts
notwithstanding that it was not absolutely necessary to rule on the point in order to dispose of the appeal. 33It
should be noted that if a judge rests his decision on two different grounds neither can be characterized as obiter
dictum.34
The lawyer can argue that while the precedent case does stand for the legal proposition for which it has
been cited, the case has been effectively overruled by a decision of a high court or by the introduction of a new
statute. Examples of this kind of legal argument will obviously occur after significant decisions of the Supreme
Court of Canada. For instance that Courts decision in Kamloops v. Nielsen35 did away with the distinction
between non-feasance and misfeasance in negligence actions against municipalities and many old cases which
turned on that distinction can no longer be relied upon.
The lawyer can argue that while the precedent case does stand for the legal proposition for which it has
been cited, the case at bar is different; that is, the cases are factually distinguishable. Glanville Williams suggests
that there are two kinds of distinguishing: restrictive and non-restrictive and states:

Non-restrictive distinguishing occurs where a court accepts the expressed ratio decidendi of the earlier case, and
does not seek to curtail it, but finds that the case before it does not fall within this ratio decidendi because of
some material difference of fact. Restrictive distinguishing cuts down the expressed ratio decidendi of the earlier
case by treating as material to the earlier decision some fact, present in the earlier case, which the earlier court
regarded as immaterial.
An example of restrictive distinguishing may be noted in the House of Lords decision in Peabody Fund v. Sir
Lindsay Parkinson Ltd.,36 where the Court restricted the application of Anns v. Merton London
Borough.37 The Anns case is cited as authority for the proposition that a municipality may be liable in negligence
where it fails to properly inspect building plans. In the Peabody Fund case, by defining the duty of the
municipality as being owed to owners and occupiers threatened with the possibility of injury to safety or health,
the House of Lords specified and made less general, the scope of the municipalitys responsibility as it had been
defined in the Anns case. In the result, the Court did not allow a claim by the developer of a housing project who
suffered damages when the municipalitys drainage inspector failed to point out that the drainage system was not
being installed in accordance with the approved design.38 Thus, in Peabody Fund the element of restrictive
distinguishing is the introduction of the requirement of the possibility of injury to safety or health.
An example of non-restrictive distinguishing may be noted in the Supreme Court of Canada decision in Town of
the Pas v. Porky Packers Ltd.39 In this case, the Court noted that the authority of Hedley Byrne Co.
Ltd. v. Heller40 required the plaintiff in a negligent misrepresentation claim to show that he relied on the skill and
judgment of the party from whom he had received incorrect information. In thePorky Packers case the plaintiff
had received incorrect zoning advice from municipal officials but the plaintiffs representative was a former
municipal council member who had more expertise in planning matters than the officials. In these circumstances,
there could be no reliance and the doctrine or authority of Hedley Byrne by its own criteria was not available.
The plaintiffs claim was dismissed. The material fact of the plaintiffs lack of reliance provided the element for
non-restrictive distinguishing ofHedley Byrne.

Where the case being relied upon has a built in public policy factor, the lawyer who wishes to distinguish
the case may argue that public policy has changed and while the legal principle of the precedent case is still good
law, it is distinguishable because of the change of circumstances. The possibility of this type of argument was
noted in the case of Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co.,41 an important case with respect
to the principle that contracts in restraint of trade may be voidable on grounds of public policy. In his judgment
in this case, Lord Watson noted:

A series of decisions based upon grounds of public policy, however eminent the judges by whom they were
delivered, cannot possess the same binding authority as decisions which deal with and formulate principles
which are purely legal.42

The lawyer can argue that while the precedent case does stand for the legal proposition for which it has
been cited, there is another precedent of equal weight which stands for the opposite proposition. The lawyer then
goes on to argue that it is that other case which the court should follow. This type of argument is related to but in
the end result different from the per incuriam argument because it does not necessarily challenge either
decision as having been given per incuriam. The rule is rather that the court may decide which one of the
conflicting decisions to follow. Interestingly and as will be seen in a somewhat ironical way, the availability of
this rule in Ontario is itself an example of the rule. The legal argument follows.The 1876 Ontario appellate
decision of Fisken et al. v. Meehan43 is authority for the proposition that where there are conflicting decisions of
equal weight the court should follow the more recent decision. Lower courts followed the Fisken et
al. v. Meehan rule in Bank of Montrealv. Bailey and Bailey,44 and in Chiwniak v. Chiwniak,45 although
in Chiwniak Wilson J. described the duty imposed by the rule to be presumptuous.46However,
in Hamilton v. Hamilton47 Middleton J., sitting as a lower court judge, said that where there are conflicting
decisions, the lower court judge may follow the decision which commends itself most to him. Unfortunately,
Middelton J. does not cite the Fisken case and the Hamilton v. Hamilton decision may thus be said to have been
given per incuriam. But, in 1958 the Court of Appeal decided Woolfrey v. Piche.48 In that case, LeBel J.A. stated:

but I am now faced with two conflicting decisions in this Court on the same point, and in that unfortunate state
of things I apprehend that I must choose between them as I have done. That is what was done in Young v. Bristol
Aeroplane Co., [1944] 1 K.B. 718, where three exceptions to the application of the rule in Velazquez [the stare
decisis rule] were stated. One of these (the first incidentally) is that the court is entitled and bound to decide
which of two conflicting decisions of its own it will follow. [p. 729] There is authority also for the proposition
that where two cases cannot be reconciled, the more recent and the more consistent with general principles
ought to prevail. See Campbell v. Campbell (1880), 5 App. Cas. 787 at p. 798.49[emphasis added]
The Fisken decision is again not cited but its principle that the later of two conflicting cases should be followed
is acknowledged but qualified by the requirement that the later case be more consistent with general principles.
Thus, to the extent that there is any inconsistency between Fisken v. Meehen withWoolfrey v. Piche,
the Fisken case directs that Woolfrey be followed. If the Woolfrey rule is used to resolve any conflict in authority
between the cases, it must come down on its own side or it would not be an authority. If there is no inconsistency
between the cases because of the qualification or explanation noted by LeBel J.A. then again the Woolfrey rule
will be followed.
Legal argument when there is no binding precedent
The above seven types of legal argument are the principle techniques used to get around an apparently binding
precedent and we can turn next to the problem of not being able to find a precedent case. Because there is
considerable room for imagination and creativity in responding to this problem, it is more difficult to identify the
main techniques. Nevertheless, some typical responses may be identified. Below we will consider three classical
types of legal reasoning used in these circumstances. Again the doctrine of stare decisis, this time in spirit, may be
noted.

Where a lawyer cannot find a binding precedent, he or she may rely on a non-binding precedent from
another jurisdiction. While not obliged to do so, the court may be impressed with or be persuaded by the
reasoning and be prepared to adopt the rule established by the foreign case. However, care must be taken in
employing this technique because it often necessitates reviewing the foreign law to determine whether there may
be underlying differences in principles which qualify or which may diminish the persuasiveness of the foreign
case. For example, decisions on the American Bill of Rights will obviously be important and helpful in
interpreting our own Charter of Rights and Freedoms. However, it must not be lost sight of that there is no
provision in the American Constitutioncomparable to the provision in our Charter that the rights set out are
guaranteed subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free
and democratic society.50
Where a lawyer cannot find a binding precedent, he or she may form a legal argument from first principles.
This approach identifies legal principles from decided cases and argues that while the factual circumstances of
the cases may appear different, analytically they are the same. This kind of legal argument is often used with
respect to determining the measure of damages. For example, without any reference to its particular
facts, Wertheim v. Chicoutimi Pulp Co.51 is often cited as authority for the legal principle that where there is a
breach of contract then as far as money can do so, the injured party is to be placed in as good a position as if the
contract had been performed. The general principle is then applied to the particular facts of the immediate
case.This type of approach may be noted also with respect to the issue of liability; for example, Hedley Byrne &
Co. Ltd. v. Heller, supra, has frequently been cited as applying to fact situations which do not remotely resemble
the facts of that case. This kind of argument does not purport to extend or develop the law; rather, the sense of it
is just the opposite. The underlying premise is that the judge will be applying and will not be departing from
decided law. The spirit of stare decisis may be noted here.
Where a lawyer cannot find a precedent he or she can go beyond first principles and instead develop an
argument that the decided cases have evolved to a general principle which covers the immediate case. This is a
very sophisticated and creative type of argument. It is the kind of argument in which common law lawyers and

judges take particular pride. It is this type of argument that can be identified in the majority judgment of Lord
Atkin in McAlister (or Donoghue) v. Stevenson.52 In that case, there were two strong dissenting judgments of
Lord Buckmaster and Lord Tomlin and their legal argument was that the plaintiffs claim did not come within
the reach of the established authorities but represented a new type of claim. Lord Atkins response was that while
the decided cases might each examine particular types of liability, there must be a common rationale. His
Lordship stated:

At present I content myself with pointing out that in English law there must be, and is, some general conception
of relations giving rise to a duty of care, of which the particular cases found in the books are but instances. 53
His Lordship then went on to complete his famous speech which is the foundation of the modern law of
negligence. In his approach, we can again note the spirit of stare decisis. Lord Atkin did not ignore the
precedents. Instead he found within them an underlying principle which he then applied. In a sense, Lord Atkin
looked backward before he moved the law forward. Further, his argument was not based on any assertion that
the principle he was articulating was the next logical step in the law. Indeed, an appeal to pure logic is difficult
because established precedents may prevent the law from developing as a matter of logical progression. Lord
Halsbury in Quinn v. Leathen54 stated:
A case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that
may seem to logically follow from it. Such a mode of reasoning assumes that the law is necessarily a logical
code, whereas every lawyer must acknowledge that the law is not always logical at all.55
Thus, McAlister (or Donoghue) v. Stevenson does not offend the letter or spirit of the doctrine of stare decisis
and provides a classic example of legal reasoning and legal argument in circumstances where there was no near
precedent for the case.
Conclusion
This paper has focused on one aspect of legal reasoning and argument, that of the use of precedent. However, it must
be conceded that stare decisis is only a part of this topic. There is much more. There are substantive rules for the
interpretation of statutes and there are special rules and considerations when the statute is a tax act or a criminal
code or a constitutional document. There are special and often difficult rules for the interpretation of contracts and
testamentary instruments. There are unique considerations when principles of the law of equity are involved and
problems caused by the evidentiary rules of onus of proof or of rebuttable and irrebuttable presumptions. yet, while
the multitude of these rules provides the lawyer with a large variety of other tools and techniques for legal reasoning
and legal argument, it also has to be conceded that stare decisis continues to play the pivotal role.