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What Is a Precedent?

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  • Written By: G. Wiesen
  • Edited By: Heather Bailey
  • Last Modified Date: 02 October 2014
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A precedent, with regard to law, is a specific legal case that typically sets a standard for how similar cases should be ruled based on the initial case. In other words, it is a legal case that establishes a basic sense of how an issue can be handled, and subsequent cases will often rule in a way that is similar to the precedential one. There are typically two major types of precedents in law: binding ones that usually must be followed by other courts in most situations, and persuasive ones that can be followed but are not mandatory. A precedent can be an important part of a legal issue, but there is some criticism regarding their and importance in American law.

The concept of a precedent in law stems from English common law and was transferred from the legal system of England to American law. The binding or mandatory type is one that must be followed by other courts, and is usually established by a higher court. In the US, for example, binding precedents are often established by the US Supreme Court and all lower courts are expected to uphold the rulings.

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A persuasive precedent, on the other hand, is one that is established in a legal case but that does not have to be followed. These typically serve as examples for what has been done before, and what others may consider as a legal issue moves forward. If a tobacco grower was found culpable in a wrongful death case involving someone dying from lung cancer caused by smoking cigarettes, for example, unless the case was settled in the highest court it would serve as a persuasive precedent for cases that followed it. Other courts could rule differently on similar cases in the future, but the one case would establish grounds for other courts to follow suit.

Precedents are often used in a number of different ways by lawyers and legal critics. Students of law will often read them to learn about what has come before, and to get a sense of what is likely to follow. A precedent can often indicate how future courts might rule on a particular subject, or the importance of a particular subject at any given time. There is a fair amount of criticism, however, with regard to the use of precedents in American law. Some have argued that they can too often cause courts to rule in a way that is uniform with what others have done, regardless of the facts of an individual case.

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acf1
Post 6

Can anybody give me a link that shows precedent?

Izzy78
Post 4

@jmc88 - I really feel that precedents are really important in law simply due to the fact that so many court systems base their entire system of law off of precedents and past cases.

I was taught growing up that the United States does not base all their law off of precedents, but they do for the most part. England on the other hand uses their past cases and precedent to an extreme in their court decisions and have come up with a pretty fair system of law using this method.

I am really wondering what other countries use the idea of precedents to base their system of law and what flaws there might be for those who choose to or choose not to adopt this idea?

jmc88
Post 3
@cardsfan27 - All judges understand what you said, and that is why they do not base their decisions entirely off of past cases, but only use them as a guide.

Now in precedents, there are matters concerning all similar cases, such as sentence and severity of the crime, that are entirely determined by past cases, but again the circumstances and all aspects of the current case are taken into account and compared to the past case that served as precedent.

It is very unlikely that the cases will be one hundred percent similar and that is why a judge is used in order to use his or her best judgment in the case to come to a fair and just decision, based on all the information and research at their disposal.

cardsfan27
Post 2
Everyone needs to keep in mind that every case that comes to a trial is different, with different evidence, circumstances, motives, as well as people in the court room which may have a different way of viewing the case, as opposed to years in the past.

Although it is great to use past cases as a way to justify their decisions in the present, courts cannot rely on these too much or else they start to lose sight of the simple facts in the case and could come to a wrong or even unjust decision.

matthewc23
Post 1
Can anyone give me some examples of precedents that have been overturned? Or is it even possible to do that?

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