By definition, a case of first impression cannot be decided by a precedent. Since there is no precedent for the court to follow, the court uses the plain language and legislative history of a statute that must be interpreted, the decisions of other jurisdictions, the persuasion and analogies of previous decisions of other courts (which may be superior, peers or lower courts in the hierarchy or other jurisdictions), commentaries and articles by jurists, and the logic and sense of justice inherent in the Court. Non-publication of opinions or unpublished opinions are court decisions that cannot be cited as precedent because the judges issuing the opinion consider the cases to be less relevant to the previous ones. Selective publishing is the legal process in which a judge or judge of a court decides whether or not to publish a decision in a journalist. „Unpublished“ federal appeal decisions are published in the Federal Annex. Publication is the power of a court to make an order or notice previously published without publication. Note: In order to serve as a precedent for an ongoing proceeding, a previous decision must contain a similar legal issue and factual situation. If the precedent comes from the same jurisdiction or a higher court (such as the state Supreme Court), it is binding on the court and must be followed; If the precedent comes from another jurisdiction (such as the Supreme Court of another state), it is only considered convincing. In particular, precedents may be set aside by the same court that originally issued the decision.
In a 1997 book, attorney Michael Trotter blamed American lawyers` over-reliance on precedent—particularly the persuasion of marginal relevance—rather than the substance of the case in question, as a major factor in escalating legal fees in the 20th century. He argued that courts should prohibit citing persuasive power outside their jurisdiction and force lawyers and parties to plead only on the basis of binding precedents, with two exceptions: „Super stare decisis“ is a term used for an important precedent that resists or immunizes against overthrow. whether it was properly decided or not. It may be considered an extreme in a number of precedents, or to express a belief or criticism of that belief that certain decisions should not be overturned. In general, a common law court system consists of trial courts, interlocutory courts of appeal and a Supreme Court. The lower courts conduct almost all court proceedings. Courts below are required to follow precedents set by the Court of Appeal for their jurisdiction and all precedents of the Supreme Court. In civil law and pluralistic systems, such as Scots law, precedents are not binding, but case law is taken into account by the courts. On many issues, reasonable people may disagree. If two of these people are judges, the tension between two precedents can be resolved as follows. There are disadvantages and advantages to a binding precedent, as academics and lawyers have noted. „In law, a previous decision, rule or practice which, in the absence of a particular law, has the force and authority that a judge can give it, thus greatly simplifying his task of doing what he wants.
Since there are precedents for everything, he only has to ignore those who speak against his interest and emphasize those who are in line with his desire. The invention of a precedent elevates the trial of the small succession of a fortuitous test to the noble posture of an orientable arbiter. – Ambrose Bierce When different members of a multi-judge tribunal write different opinions, the arguments may be different; Only the ratio decidendi of the majority becomes a binding precedent. For example, if a 12-member tribunal divides 5-2-3-2 into four different opinions on several different topics, each reasoning may require seven votes on each particular issue, and majorities of seven judges may vary from subject to subject. All can be cited as persuasive (although, of course, opinions that agree on the majority result are more persuasive than dissenting opinions). A precedent refers to a judicial decision that is considered an authority to decide subsequent cases involving identical or similar facts or similar legal issues. The precedents are included in the doctrine of stare decisis and require courts to apply the law equally to cases involving the same facts. Some judges have stated that precedents ensure that people in similar situations are treated equally, rather than on the basis of the personal opinions of a particular judge. The second principle, convincing precedents, reflects the general precedents on which a court can base all its decisions.  In contrast, civil law systems follow a legal positivism in which previous decisions generally do not have the precedential and binding effect they have in common law decision-making; A notable exception is judicial review by constitutional courts. The Court has never felt compelled to follow precedents. In constitutional cases where correction depends on amendments rather than legislation, the Court has exercised freely throughout its history its power to review the basis of its constitutional decisions.
Stare decisis is generally not a doctrine used in civil law systems because it violates the legislative-positivist principle that only the legislature can legislate. Instead, the civil law system is based on the doctrine of consistent jurisprudence, according to which previous decisions are very convincing but not legally decisive if a court has decided a coherent line of cases that result in the same participations with sound reasoning. This doctrine is similar to stare decisis in that it requires that a court`s decision tolerate a consistent and predictable outcome. Theoretically, lower courts are generally not bound by higher court precedents. In practice, the requirement of foreseeability means that lower courts generally submit to the precedent of higher courts. As a result, the precedent is recognized by courts of last instance such as the French Court of Cassation and the Council of State as de facto binding on lower courts. In exceptional circumstances, a superior court may overturn or overturn mandatory precedents, but will often attempt to distinguish the precedent before it is repealed, thereby limiting the scope of the precedent. 1) n. a previously reported opinion of a court of appeal which determines the rule of law (authority) in the future on the same point of law decided in the previous judgment. Thus, „the rule set out in Fishbeck v.
Gladfelter is a precedent for the court case in this case. The doctrine that a lower court must follow a precedent is called stare decisis (2) adj., as in the term „condition precedent“, which is a situation that must exist before a contracting party must perform a contract. Some mixed systems, such as Scottish law in Scotland, South African law, the laws of the Philippines, and the laws of Quebec and Louisiana, do not fit the dichotomy between civil law and common law because they mix parts of the two.