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Common Law Process and its Development


In United States, law is developed through litigations conducted in courts. Each state has its own jurisdiction and hierarchy of courts. The court system is organized along a vertical structure. The position of a court in this vertical structure determines the way its decisions are treated as precedents.

The system of Precedents has a companion doctrine called stare decisis which is a shortened form of the phrase Stare decisis et non quieta movere. The phrase means that the courts should follow the precedents by not disturbing the settled points. Therefore, the courts should follow only the precedents which have a binding authority on them.

Precedents can be either binding or persuasive according to the positions of the courts in the hierarchy within the specific jurisdiction. If there are precedents from a higher court of the same state jurisdiction on a particular point of law, then the judges of the lower court are constrained to decide a pending case according to the earlier decisions. Such a precedent is a binding authority on the lower courts in the vertical structure of court system. If there are some decisions from a higher court of a state, the judge of a lower court in another state is not bound to decide a pending case according to that decision. Precedents from another state jurisdiction have only persuasive authority. The Judge may take these decisions into account, but it is not necessary to follow them.

When we search for case authorities, we should search for binding authorities. If the case is a first impression case, we should look for how the courts in other jurisdictions have treated similar cases, so that those precedents will persuade the court to decide the case.
Except for state law issues, United States Supreme Court is the Appellate authority for all the courts in the United States of America. United States Supreme Court is the only court which is specifically created by the constitution. The composition and jurisdiction of the court are decided by Congress. It consists of 9 Judges including 8 Associate Justices and the Chief justice of The United States of America. The Court hears all the cases en banc, which means that all the 9 justices sit and make final decisions in all cases. A decision can be reviewed by the Supreme Court, either as a matter of right or through a writ of certiorari. The term certiorari means ‘bring up the record’. The Supreme Court maintains the supremacy and consistency of Federal Law by the exercise of appellate certiorari jurisdiction over the cases involving federal issues from lower federal courts and the highest courts of the states.

Author:Neethu Alex
Junior Associate
LegalEase Solutions Pvt Ltd
Kochi.