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The Criminal Justice System, 2nd Edition

Precedent

Definition: Court rulings that guide later court interpretations of the law

Criminal justice issue: Courts; Judges; Law codes

Significance: When judges see factual similarities between current cases and earlier cases, they look for rules of law on which the earlier cases were based and apply them to their present cases.

Judges use precedent in cases. (Public domain, via Wikimedia Commons)

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Much law is written in terms that do not lend themselves to a single, unequivocal interpretation. For example, the First Amendment to the US Constitution states that “Congress shall make no law … abridging the freedom of speech.” However, because the authors of the Bill of Rights did not anticipate the invention of radio and television, contemporary judges must decide whether electronic communications broadcasts over the airwaves are a form of “speech.”

When judges confront such ambiguous situations for the first time, they apply the written Constitution according to what they consider just principles. In doing so they effectively fill in the blank spaces in the document. In that sense they are actually making constitutional law. Because judges are bound to follow established law when they make decisions, all judges in similar cases in the future must follow the precedent established in the earlier case.

Law made by legislatures—called “statutory law”—is often characterized by the same ambiguity. When the US Congress passed the Sherman Anti-Trust Act of 1890, the Supreme Court had to decide whether the law’s prohibition of “every contract, combination …or conspiracy in restraint of trade or commerce” made union-organized strikes illegal. In Loewe v. Lawlor

(1908) the Court said that a union strike was such an illegal restraint of trade. This decision prompted Congress to amend the antitrust law six years later to exempt union activity from its coverage.

US legislators do not write laws to cover every conceivable circumstance. If judges find that there simply is no applicable statute, they must make a decision in the case on the basis of their understanding of justice. Such judge-made law is called common law and is found in judges’ written decisions. Once a judge has made a common-law decision, the decision carries the force of law, and other judges must apply the principle in deciding future cases.

A precedent is binding only in the jurisdiction in which it has been decided. Thus, if a Maine court decides that an optometrist’s failure to test for glaucoma constitutes negligence, that decision does not bind a Mississippi judge. When it comes to federal constitutional and statutory law, the US Supreme Court’s interpretations govern the entire country.

It is possible to overturn a precedent. Common law can be overruled by a statute. A court’s interpretation of a statute may be overruled by a subsequent statute. A court may overrule itself but rarely does so. A precedent may or may not be a good law, but as former US Supreme Court Justice Harlan Fiske Stone said, “It is often more important that a rule of law be settled than that it be settled right.”

William H. Coogan

Further Reading

1 

Amar, Akhil Reed. The Constitution and Criminal Procedure: First Principles. New Haven: Yale UP, 1997. Print.

2 

Burge, Mark Edwin. “Without Precedent: Legal Analysis in the Age of Non-Judicial Dispute Resolution.” Cardozo Journal of Conflict Resolution 15.1 (2013): 143-91. Print.

3 

Hitt, Matthew P. “Measuring Precedent in a Judicial Hierarchy.” Law & Society Review 50.1 (2016): 57-81. Print.

4 

Meyer, J. F., and D. R. Grant. The Courts in Our Criminal Justice System. Upper Saddle River: Prentice, 2003. Print.

5 

Neubauer, D. W. America’s Courts and the Criminal Justice System. 7th ed. Belmont: Wadsworth, 2002. Print.

See also Annotated codes; Case law; Common law; Constitution, U.S.; Jurisdiction of courts; Opinions; Stare decisis; Statutes.

Citation Types

Type
Format
MLA 9th
"Precedent." The Criminal Justice System, 2nd Edition, edited by Hooper Michael K., Salem Press, 2017. Salem Online, online.salempress.com/articleDetails.do?articleName=CJ2E_0438.
APA 7th
Precedent. The Criminal Justice System, 2nd Edition, In H. Michael K. (Ed.), Salem Press, 2017. Salem Online, online.salempress.com/articleDetails.do?articleName=CJ2E_0438.
CMOS 17th
"Precedent." The Criminal Justice System, 2nd Edition, Edited by Hooper Michael K.. Salem Press, 2017. Salem Online, online.salempress.com/articleDetails.do?articleName=CJ2E_0438.