3.5. Sources of Law: Administrative Law, Common Law, Case Law and Court Rules

Stare Decisis and Precedent:  Been There, Done (must do) That. 

The doctrine of stare decisis comes from a Latin phrase that states, “to stand by the decisions and not disturb settled points”. It tells the court that if the decisions in the past have held that a particular rule governs a certain fact situation, that rule should govern all later cases presenting the same fact situation. Under the doctrine of stare decisis, past appellate court decisions form precedent that judges must follow in similar subsequent cases. Stare decisis permits society to presume that bedrock principles are founded in the law rather than in the proclivities of individuals, and thereby contribute to the integrity of our constitutional system of government, both in appearance and fact. ^[3] Trial courts and appellate courts must follow the controlling case law that has already been announced in appellate court decisions from their own jurisdiction. Trial courts must follow precedent when they decide questions of law. [Questions of law include what a statute means, what the law states, how the constitution should be interpreted, whether a particular law even applies under the facts in the case before them. On the other hand, questions of fact are decided by jurors (or judges in bench trials) and include, for example, how fast was the defendant driving, what color hat the defendant was wearing, or whether the gun went off accidentally.] One way courts get around precedent is to distinguish the facts in the case before them as much different than the facts in the earlier case.  For example, if the court decides that the fact that the defendant was running away from the scene, in this case, is so different from the earlier case in which the defendant was merely walking away from the scene, then there is no precedent it must follow.

The advantages of stare decisis include efficiency, equality, predictability, the wisdom of past experience, and the image of limited authority. ^[4] Efficiency occurs because each trial judge and the appellate judge does not have to work out a solution to every legal question. Equality results when one rule of law is applied to all persons in the same setting. “Identical cases brought before different judges should, to the extent humanly possible, produce identical results. … Stare decisis assists in providing uniform standards of law for similar cases decided in the same state. It provides a common grounding used by all judges throughout the jurisdiction.” ^[5] Stare decisis provides stability in allowing individuals to count on the rules of law that have been applied in the past.

In the federal system, all federal courts must follow the decisions of the Supreme Court,fdc as it is the final interpreter of the federal constitution and federal statutes. If, however, the Supreme Court has not ruled on an issue, then the federal trial courts (U.S. District Courts and U.S. Magistrate Courts) and federal appellate courts (Circuit Courts of Appeals) must follow decisions from their own circuit. Each circuit is treated, in effect, as its own jurisdiction, and the court of appeals for the various circuits are free to disagree with each other.

Because stare decisis is not an absolute rule, courts may reject precedent by overruling earlier decisions. One factor that courts will consider before overruling earlier case law is the strength of the precedent. Another factor is the field of law involved. Courts seem to be more reluctant to override precedents governing property or trade where commercial enterprises are more likely to have relied quite heavily on the precedent. The most compelling basis upon which a court will overturn precedent, however, is if it perceives the presence or absence of changed circumstances. For example, scientific or technological developments may warrant the application of new rules. Consider the common law year and a day rule which required the government, in a murder prosecution, to prove that the victim died within one year and a day of the attack. The rule is premised on the idea that there needed to be some showing that the defendant’s act caused the death. Medical science now makes it possible to trace the source of fatal blow, so murder statutes no longer include the year and a day rule. (More recently, the Court considered whether the social and economic opportunity enjoyed by women had significantly improved since the 1972 decision in Roe v. Wade, and in turn, whether the constitutional protection of abortion was warranted.) One final ground for overruling a prior decision is general changes in the spirit of the times. For example, in Trop v. Dulles, 356 U.S. 86 (1958), the Court looked to “evolving standards of decency” in deciding whether the defendant’s punishment was cruel and unusual and thus violated the Eighth Amendment.

Okay, so where do I look to see if my behavior is prohibited? 

Because criminal law has many sources–constitutions, legislative enactments, administrative rules, case law, and common law–it is not necessarily an easy task to determine whether your behavior or the way government responds to your behavior, is lawful. First, it is always advisable to know your rights under the federal constitution and your state constitution and understand what limits the constitution places on legislative enactments and law enforcement actions. Still, even assuming that laws have been properly enacted and that police have followed proper procedure, it may be difficult to determine whether your behavior is prohibited. Because most states now codify their criminal laws by enacting statutes, start there. Then look to any case law which may interpret these statutes.  Since courts generally follow precedent due to the doctrine of stare decisis, one red flag that your behavior may be unlawful is that, in the past, the courts have found behavior similar to yours to be unlawful.