Case Law: Binding and Nonbinding Precedent

One aspect of US law that is different from the civil law system of other countries is the importance of case law.

When a judge renders a decision that decision has the force of law. We call this type of law case law. Because judges create case law, case law is also called judge-made law. 

To understand the importance of case law we need to understand precedent or stare decisis.  The principle of precedent is that cases with similar facts should have similar results.  When a judge decides a case with a particular set of facts, precedent tells us that subsequent judges should reach a similar decision.

In the United States there are two types of precedent: binding and non-binding precedent.  When an appellate level court reaches a decision, it is binding precedent on lower courts in the same jurisdiction – – that is lower courts must follow that decision.  But decisions from one jurisdiction are not binding on courts in other jurisdictions.

For example, if New York’s Court of Appeals, the highest level court in New York, creates caselaw, that case law will be binding precedent on other courts in New York.  New York’s decisions, though, are not binding on other states.

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Can case law change? 

Of course.

First, appellate level courts will sometimes break with their own precedent.  For example, the Supreme Court of the United States could choose to not follow precedent from one of its prior decisions. 

Second, if legislators are unhappy with a court decision they can pass or amend a statute.  For example, let’s say a city passes a law prohibiting vehicles from a park after 2 pm.  A court interprets this law to mean that bicycles are prohibited from the park after 2 pm.  The city could amend its law to clarify that bicycles are not vehicles.  Subsequent case law will have to reflect that the statute expressly excludes bicycles from the definition of vehicles.

Caselaw: Concurring and Dissenting Opinions

Appellate level courts generally have at least three judges. If a judge agrees with the decision of other judges but for different or additional reasons he might write a “concurring opinion.”  The concurring decision explains why the judge reaches the same result as the other judges but why his reasoning is different.

Sometimes judges disagree with the conclusions of the other judges. Let’s say two out of three judges vote to affirm a lower court’s decision.  The decision of the lower court will be affirmed because the majority agreed with the lower court.  The judge who disagrees with the other judges on the panel can write a “dissenting opinion”  explaining why she disagrees with the majority.

Concurring and dissenting opinions are never binding precedent.

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