Judicial Precedent Courts adjudicate alleged violations of and disputes arising under the law. This often requires that they interpret the law. In doing so, courts consider themselves bound by how other courts of equal or superior rank have previously interpreted a law. This is known as the principle of “stare decisis,” or simply precedent. It helps to ensure consistency and predictability. Litigants facing unfavorable precedent, or case law, try to distinguish the facts of their particular case from those that produced the earlier decisions. Sometimes courts interpret the law differently.
The Fifth Amendment to the Constitution, for instance, contains a clause that “[n]o person… shall be compelled in any criminal case to be a witness against himself.” From time to time, cases arose where an individual would decline to answer a subpoena or otherwise testify on the grounds that his testimony might subject him to criminal prosecution — not in the United States but in another country. Would the selfincrimination clause apply here? The U.S. Court of Appeals for the Second Circuit ruled it did, but the Fourth and Eleventh Circuits held that it did not.* This effectively meant that the law differed depending where in the country a case arose!
Higher-level courts try to resolve these inconsistencies. The Supreme Court of the United States, for instance, often chooses to hear a case when its decision can resolve a division among the Circuit courts. The Supreme Court precedent will control, or apply to all the lower federal courts. In United States v. Balsys, 524 U.S. 666 (1998), the Supreme Court ruled that fear of foreign prosecution is beyond the scope of the SelfIncrimination Clause.** This ruling became the law of the entire nation, including the Second Circuit. Any federal court subsequently facing the issue was bound by the high court ruling in Balsys. Circuit court decisions similarly bind all the District Courts within that circuit. Stare decisis also applies in the various state court systems. In this way, precedent grows both in volume and explanatory reach.
DIFFERENT LAWS; DIFFERENT REMEDIES Given this growing body of law, it is useful to distinguish among different types of laws and of actions, or lawsuits, brought before the courts and of the remedies the law affords in each type of case. Civil/Criminal Courts hear two kinds of disputes: civil and criminal. A civil action involves two or more private parties, at least one of which alleges a violation of a statute or some provision of common law.
The party initiating the lawsuit is the plaintiff; his opponent the defendant. A defendant can raise a counterclaim against a plaintiff or a cross-claim against a co-defendant, so long as they are related to the plaintiff’s original complaint. Courts prefer to hear in a single lawsuit all the claims arising from a dispute. Business litigations, as for breach of contract, or tort cases, where a party alleges he has been injured by another’s negligence or willful misconduct, are civil cases.
While most civil litigations are between private parties, the federal government or a state government is always a party to a criminal action. It prosecutes, in the name of the people, defendants charged with violating laws that prohibit certain conduct as injurious to the public welfare. Two businesses might litigate a civil action for breach of contract,
the government can charge someone with murder. The standards of proof and potential penalties also differ. A criminal defendant can be convicted only upon the determination of guilt “beyond a reasonable doubt.” In a civil case, the plaintiff need only show a “preponderance of evidence,” a weaker formulation that essentially means “more likely than not.” A convicted criminal can be imprisoned, but the losing party in a civil case is liable only for legal or equitable remedies, as explained below
Legal and Equitable Remedies The U.S. legal system affords a wide but not unlimited range of remedies. The criminal statutes typically list for a given offense the range of fines or prison time a court may impose. Other parts of the criminal code may in some jurisdictions allow stiffer penalties for repeat offenders. Punishment for the most serious offenses, or felonies, is more severe than for misdemeanors.
In civil actions, most American courts are authorized to choose among legal and equitable remedies. The distinction means less today than in the past but is still worth understanding. In 13th century England, “courts of law” were authorized to decree monetary remedies only. If a defendant’s breach of contract cost the plaintiff £50, such a court could order the defendant to pay that sum to the plaintiff. These damages were sufficient in many instances, but not in others, such as a contract for the sale of a rare artwork or a specific parcel of land. During the 13th and 14th centuries, “courts of equity” were formed. These tribunals fashioned equitable remedies like specific performance,
which compelled parties to perform their obligations, rather than merely forcing them to pay damages for the injury caused by their nonperformance. By the 19th century, most American jurisdictions had eliminated the distinction between law and equity. Today, with rare exceptions, U.S. courts can award either legal or equitable remedies as the situation requires.
One famous example illustrates the
differences between civil and criminal
law, and the remedies that each can
offer. The state of California charged
the former football star O.J. Simpson
with murder. Had Simpson been convicted, he would have been imprisoned. He was not convicted, however,
as the jury ruled the prosecution failed
to prove Simpson’s guilt beyond a reasonable doubt. Afterwards, Mrs.
Simpson’s family sued Simpson for
wrongful death, a civil action. The
jury in this case determined that a
preponderance of the evidence
demonstrated Simpson’s responsibility for the death of his wife. It ordered
Simpson to pay money damages — a
legal remedy — to the plaintiffs.
