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Related to binding precedents: precedent, Stare decisis, Legal precedent, Persuasive precedent


Law a judicial decision that serves as an authority for deciding a later case



in law, a decision delivered by a court in a specific case, the opinion for which becomes a rule that is binding on all courts of the same or lower instance in deciding analogous cases. Soviet law does not recognize precedent and does not permit the decision of criminal cases by analogy, holding that the judicial decision should be based on statutory law alone.

In some countries, including Great Britain, most of the states in the United States, Canada, and Australia, legal precedent is recognized as a source of law and lies at the foundation of the entire legal system. In accordance with the prevailing doctrine in these countries, the judge who creates a legal precedent does not create a legal norm but only formulates that which follows from the common principles of law inherent in human nature. In reality the judge may always reject the application of precedent, citing some insignificant features of the particular case in order to introduce an entirely new rule. The judge also has the freedom to interpret precedent and to select from an enormous number of precedents; in other words, there is an enormous potential for judicial discretion and arbitrary legal actions. In legal writing and in practice, systems of law based on precedent are often called systems of judge-made law.

In a number of bourgeois countries, including France, the Federal Republic of Germany, and Belgium, precedent is important for deciding questions of the application of law, filling gaps in the law, and recognizing custom and commercial practices. On the basis of precedent, existing legislation is supplemented, and statutory law is interpreted.

References in periodicals archive ?
Unpublished dispositions and orders of this Court are not binding precedent, except when relevant under the doctrines of law of the case, res judicata, and collateral estoppel.
1995) ("[T]his Private Letter Ruling is not binding precedent upon the Internal Revenue Service as to other taxpayers, or upon this Court, 26 U.
These are omnibus terms whose meaning can run the gamut from binding precedent to mere citable precedent (discussed shortly).
49) Of the eight circuits that allow citation of unpublished opinions, four--the Eighth, Tenth, Eleventh, and Fifth--provide that such opinions are "not precedent," or "not binding precedent," but that they may be cited for their "persuasive value.
The central split among the circuits, for example, is not over binding precedent.
Nevertheless, much of what Judge Kozinski says in his discussion of binding precedent seems quite relevant to no-citation rules.
A]dding endlessly to the body of precedent--especially binding precedent can lead to confusion and unnecessary conflict," he writes.
I see three possibilities: (1) binding precedent, fully subject to the law-of-the-circuit rule and thus overrulable only by the en banc court; (2) "persuasive" authority that is "not precedent," and hence not subject to the law-of-the-circuit rule; and (3) a new "overrulable" status based on lifting the law-of-the-circuit rule to allow panel overruling of a prior panel's unpublished opinion, but only if the second panel does so in a published opinion.