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Appellate Courts Can Develop Legal Precedent

The U.S. Supreme Court has final authority over matters relating to the importance of federal law, including the U.S. Constitution. For example, if the Supreme Court says that the First Amendment applies in some way to defamation lawsuits, then each court is bound by that precedent in its interpretation of the First Amendment as it applies to defamation lawsuits. If a lower court judge disagrees with a precedent in a higher court, which the First Amendment should mean, the lower court judge must decide based on binding jurisprudence. Until the higher court modifies the judgment (or the law itself is amended), the binding precedent is decisive for the meaning of the law. In turn, the different publication rules are expected to influence the wider network of precedents that will be transmitted through the courts. When judges look for precedents that they can cite in their own opinion, they most likely cite precedents that are also research-based and contribute to the credibility of their opinions. For this reason, I expect that precedents published by courts that have the unanimous publication rule will be substantiated more often than precedents published by courts with the pure author publication rule. U.S. courts of last resort recognize a rebuttable presumption against setting aside their own previous decisions. In earlier eras, it has often been suggested that this presumption does not apply if the earlier decision was manifestly erroneous in the opinion of the current members of the Court. But when the Supreme Court makes similar noises today, it is sharply criticized.

At least within the Academy, conventional wisdom now claims that an alleged demonstration of errors is not enough to justify the annulment of an earlier decision. Conventional wisdom is wrong when it suggests that any coherent doctrine of the decision of the gaze must include a presumption against the creation of precedents that the current court manifestly considers erroneous. Indeed, the doctrine of stare decisis would not be a doctrine at all if the courts were free to set aside an earlier decision simply because they had rendered a decision other than the original case. But when a court says that a previous decision is manifestly flawed, it says not only that it would have made a different decision from that of the original case, but also that the previous court went beyond the realm of vagueness created by the relevant source of law. Americans have believed since its inception that court decisions could help “liquidate” or regulate the meaning of ambiguous provisions of written law. Subsequent courts should, as a general rule, adhere to such “liquidations”. However, to the extent that the underlying law was determined, it was not considered that the courts were also bound by precedents that misinterpreted them. Among the current members of the Court, Judges Scalia and Thomas seem to have the greatest confidence in the certainty of the legal texts submitted to the Court. Not surprisingly, they also seem most willing to override previous decisions of the Court.

Prominent journalists and other commentators suggest that there is some contradiction between the mantra of these judges of “judicial restraint” and any systematic review of precedents. But if one believes in the certainty of the underlying legal texts, one must define “judicial restraint” not only in the sense of fidelity to the previous one; We can also speak of fidelity to the texts themselves. Originalism is an approach to the interpretation of a legal text in which the intention of the original authors (at least the intention as derived by a modern judge) receives a weight of control. In contrast, a non-originalist examines other clues about meaning, including the current meaning of words, patterns and trends in other court decisions, changing context and improved scientific understanding, observation of practical results and “what works,” contemporary standards of justice, and the decis gaze. Both aim to interpret the text, not to change it – interpretation is the process of dissolving ambiguities and choosing among possible meanings, without changing the text. To understand how judge-level attributes affect the transmission of precedents by appellate courts, the data is structured so that the unit of analysis is the number of times a judge (Ji) quotes another judge (Jj) for each year (Ti). This method resulted in 7,868,474 observations and provided us with a number-dependent variable ranging from 0 to 38. The most frequently observed pattern of transmission was that of the judges of the Court of Appeals for the Ninth Circuit, who invoked precedents issued by the Second Circuit.

Judges of the Ninth District Court of Appeals are the most frequently cited judges in the Citation Network. Each court may attempt 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 recognised in appeal proceedings. An appellate court may also propose a completely new and different analysis from that of the junior courts and may or may not be bound by its own previous decisions or, in any event, it may distinguish decisions on the basis of significant differences in the facts applicable to each case. Or a court may consider the case before it to be one of the “first impressions” that is not governed by a determinative precedent. [7] The doctrine of binding precedent or stare decisis is fundamental to the English legal system. Among the peculiarities of the English legal system are the following: the precedents that must be applied or followed are called a binding precedent (alternatively metaphorically a precedent, a mandatory or binding authority, etc.). According to the doctrine of stare decisis, a subordinate court must respect the legal conclusions of a higher court, which is in the appeal of cases heard by the court.

In the state and federal courts of the United States of America, jurisdiction is often divided geographically between local courts of first instance, several of which fall within the territory of a regional court of appeal. All courts of appeal are subject to a Supreme Court (sometimes, but not always, called the “Supreme Court”). By definition, decisions of lower courts do not bind the higher courts of the system, and decisions of courts of appeal do not bind local courts before another court of appeal. In addition, courts must follow their own legal statements made previously in other cases and respect the decisions of other courts in disputes between the parties before them that relate to the same pattern of facts or events, unless they have a valid reason to change those decisions (see The Law of the Case: The Previous Position of a Court is a precedent that binds that court). This chapter focuses on the horizontal decision-making view, in particular the transfer of precedents from one court of appeal to another. If a court of appeal relies on a precedent set by a separate court of appeal, the submitted precedent influences a case outside its jurisdiction through persuasion and not through binding normative influence. Some researchers have argued that these quotes are evidence of strategic considerations of the judge who wrote the opinion (e.g., Calderia, 1985). This vein of literature postulates that when a judge cites a precedent published outside her jurisdiction, she is trying to provide evidence that her argument is largely substantiated and intellectually sound (Hume 2009).

Others have suggested that these submitted citations are the product of the various reservoirs of precedents among the courts of appeal. In other words, some courts may have more experience and thus a broader set of precedents relating to a particular legal issue than other courts (Solberg, Emrey, & Haire, 2006). In contrast, civil law systems adhere to legal positivism, whereas earlier decisions generally do not have the precedential and binding effect they have in common law decision-making; Judicial review by constitutional courts may be regarded as a notable exception. U.S. courts of appeals have jurisdiction over cases where violations of federal constitutional law are alleged, whether the alleged violations involve federal, state, or local governments. As a result, appeals based on constitutional grounds allow for review of state and local laws, practices, and court decisions by federal courts, not just direct appeals from federal affairs. Stare decisis (/ˈstɛərri dɪˈsaɪsɪs, ˈstɑːreɪ/) is a legal principle according to which judges are required to respect the precedent set by previous decisions. The words come from the formulation of the principle in the Latin maxim Stare decisis and non quieta movere: “to remain faithful to decisions and not to disturb those who are not disturbed”. [4] In the legal context, this means that the courts should respect precedents and not interfere with settled issues.

[4] The principle can be divided into two components:[5] In Latin, stare decisis means “to stick to things decided.” In the U.S. legal system, this Latin expression represents the “doctrine of precedent that a court must follow earlier decisions when the same points reappear in a dispute.” (Black`s Law Dictionary, 11th edition.) As a general rule, a court deviates from precedents only if there is a compelling reason. Under the “vertical” decision, decisions of the highest court of a court set a compelling precedent that the lower courts of that court must follow. For example, the U.S. Supreme Court sets a binding precedent that all other federal courts must follow (and that all state courts must follow questions of constitutional interpretation).