Lessons · Law foundations · precedent, and what binding means
Precedent, and the difference between must and might
A decision binds a court when it comes from a court above it in the same system and answers the same question; anything else is only persuasive.
Hone is a place to practise a career, one idea a day. This is one of its lessons, written out in full and free to read without an account.
What it is for
A memo comes back with one line on it: is this binding on us? A stack of decisions that nobody has sorted into must-follow and might-persuade is not research, it is photocopying, and the partner has to do the sorting that the memo was supposed to do.
How to think about it
For every decision, in this order: which court decided it, is that court above this one in the same system, is the question the same, and is the decision still good law.
Worked example
Which court decided it, and in which system?The first fact about any decision. Write it next to the citation before anything else.
Above this court, in the same system: it must be followed.That is what binding means. Not persuasive, not helpful: mandatory.
Same system but not above, or a different system entirely: it may persuade and nothing more.Useful, quotable, and never an answer to the question is this binding.
Still good law? A later decision may have overruled it, or a statute may have replaced it.A decision that has been overruled binds nobody, however well it is written.
Your turn
Write the term for the part of a decision that binds: the point the result actually rested on.
The part of a decision that binds is its
Solve one, graded on the server
The trap
Quoting a memorable sentence that was not needed for the result. A remark made in passing, obiter, persuades at most, and a brief that leans on one as if it bound the court invites the other side to say so.