Precedent

Types of Precedent

Precedent can fall into one of two categories: binding or persuasive. Binding precedent is set by higher courts and must be established in their legal reasoning; it is also known as its ratio decidendi, literally, “the reason for a decision.” Binding precedent refers back to the doctrine of stare decisis, in which lower courts are bound by the decisions of higher courts. The doctrine of stare decisis, “to stand by that which is decided,” requires adherence to precedent. When courts render their judgments, their doing so dictates future interpretations of a similar dispute unless an even higher court establishes a different outcome, thereby setting new precedent. When higher courts rule, lower courts are bound by their orders in future cases.

Persuasive precedent refers to precedent that is not mandatory or binding. For example, in cases involving circumstances that have not yet been addressed, typically referred to as cases of first impression, courts may rely on persuasive precedent by applying decisions from courts in other jurisdictions. In cases of first impression, there is no mandatory precedent for courts to apply. If earlier judgments dealt with similar circumstances, then courts may rely on persuasive precedent.

Courts can also consider customs and traditions in making their decisions in the absence of binding precedent. In addition, persuasive precedent is created by decisions of courts of the same level, particularly appellate panels. As such, courts should take such judgments into consideration but are not obligated to reach the same outcomes. If higher courts apply persuasive precedent is their opinions, it can become binding.

Insofar as precedent has such far-reaching implications for future cases, courts seek to set it as narrowly as possible. To this end, courts typically rule with great specificity, such that when they use rationales as binding or persuasive precedents, other courts can understand the circumstances under which the precedents were set.

Overturning Precedent

In rare cases, a higher court may overturn precedent. When this happens, courts usually try to distinguish the new rulings from the precedent, again making the scope of their decisions as specific as possible so that different circumstances allow for distinct decisions. For example, in Brown v. Board of Education of Topeka (1954), the Supreme Court distinguished its holding from Plessy v. Ferguson (1896), which dealt with public railway accommodations, in noting that its judgment applied to public education, because only schooling was at issue. Of course, Brown opened the door to the end of “separate but equal” throughout American society.

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