united-states case-law precedent
Are legal precedents or tests ever created outside of a traditional trial?
<p>Layperson question ahead.</p>

<p>My understanding is that laws as passed by federal, state, and local bodies are often open to interpretation. When a question arises during a trial, a judge's logic and reasoning are often used as the foundation for future understanding of a given issue.</p>

<p>Other than a judge's decision during a court case, are there other times when such legal 'clarification' takes place that is at least (if not more) binding than precedents? In essence, I'm curious if legal professionals have a mechanism for testing and improving new laws that falls between the two extremes of "try it in court and find out" and "start a petition to motivate a senator to introduce a bill to make a new law"</p>

<h2>All precedents are made in court judgements</h2>

<p>Courts exist in a hierarchy which means there are two kinds of precedent: binding and persuasive. A binding precedent is one set in the same hierarchy by a higher level court. A persuasive precedent is one set at the same or lower level in the hierarchy or in a completely different hierarchy.</p>

<p>For example, a precedent set in the Supreme Court of New South Wales sitting as the Court of Appeal is binding on the Supreme Court of NSW in general session, the District Court and the Magistrates Court (lower courts), persuasive on the Supreme Court of New South Wales sitting as the Court of Appeal and all courts in Victoria and Queensland (different hierarchies) and is not a precedent for the High Court of Australia (higher up).</p>

<p>In general, while a lower level court can, in theory, set a precedent, such cases are rarely reported so nobody knows about them and, in any event, they would only have limited applicability. Therefore most precedents come from higher level courts which means, they are usually set in appeals rather than trials of first instance.</p>

<p>In addition it is only the <a href="https://en.m.wikipedia.org/wiki/Ratio_decidendi" rel="nofollow noreferrer">ratio decidendi</a> that sets binding precedent. Anything in the judgement that is <a href="https://en.m.wikipedia.org/wiki/Obiter_dictum" rel="nofollow noreferrer">obiter dicta</a> is merely persuasive.</p>

<p>Bear in mind that the overwhelming majority of cases do not create precedent - they follow it. Or, if they don’t follow it, the judge was wrong. It is also a legal fiction (i.e. something pretending to be true that everyone knows isn’t) that judges do not create law by precedent - they merely find the law that was already there.</p>

<p>Since the role of judges in common law jurisdictions is to only decide cases, they cannot and do not offer opinions on what the law is outside of that. This is a long-standing tradition in English law and the first Chief Justice of the US Supreme Court confirmed that the Constitution did not change this.</p>

<p>Therefore, the only way to test the validity of a new law is to have a trial that uses it.</p>

<p>That said, governments have lawyers review legislation and regulations before they are promulgated to check for things like legality and workability but these are only professional opinions and are not binding. Furthermore, sometimes legislation is drafted quickly for political reasons. One hopes that legislatures take proper care when drafting legislation that it is legal, is workable and actually makes sense: one is often disappointed in that hope.</p>

<p>"Precedent" is not necessarily the relevant term for what you are asking about. Precedent refers to a legal principle articulated by a ruling of an <em>appeals</em> court, not at a trial.</p>

<p>A question could arise during a trial as to whether some evidence is admissible – the trial judge will make a decision whether the evidence falls in the excludable category, based on (1) his powers of legal reasoning and (2) the pre-existing legal rules. Another kind of question that will arise is what the law actually is, e.g. how is murder defined in that state? Jurors are given instructions that they are supposed to follow, and these instructions are often written up in advance (by a committee). Instructions are how juries "interpret" the law (jurors are not expected to <em>know</em> the statutes and corollary court rulings on some point of law. It is up to the judge to give the proper instructions, and it is up to the attorneys to object if the proper instructions are not given.</p>

<p>There is usually no record of a trial judge's reasoning behind his rulings. No precedent is created by the actions / reasoning of a trial judge. A decision from an appeals court could create legal precedent, that is, could create a rule that is to be followed. Supreme Court rulings nowadays start with a list of such rules, saying "We hold...". Besides binding precedent, there is also persuasive precedent, that is, logical arguments that aren't raised to the level of being obligatory rules of legal logic.</p>

<p>So generally, only an appeals court can create logical rules for interpreting existing law (except: a legislature can also dictate such rules, though rarely do). However, state and federal agencies can create rules which interpret certain existing laws. Typically, Congress does not want to bother spelling out all of the details of how to approve new drugs, so they state certain parts of the law in the statutes, then they authorize an administrative agency to give specifics of interpretation as to "exactly how" or "exactly what". The IRS does this quite often.</p>

<blockquote>
<p>Other than a judge's decision during a court case, are there other
times when such legal 'clarification' takes place that is at least (if
not more) binding than precedents? In essence, I'm curious if legal
professionals have a mechanism for testing and improving new laws that
falls between the two extremes of &quot;try it in court and find out&quot; and
&quot;start a petition to motivate a senator to introduce a bill to make a
new law&quot;</p>
</blockquote>
<h1>True Precedents</h1>
<p>A true precedent is one that arises from a decision of an appellate court on the merits on an issue necessarily decided to resolve the issue presented in an actual case or controversy.</p>
<p>A legal holding on an issue not necessarily decided to resolve the case or not actually presented by a case is called &quot;dicta&quot;. The requirement that there be an actually case or controversy is sometimes described as a prohibition on providing &quot;advisory opinions.&quot; Cases that are resolved on grounds other than the merits (e.g. as a sanction for failing to meet a filing deadline for a brief) do not have legal effect as precedents.</p>
<p>Also, there are two kinds of precedents. Binding precedents are from courts that have appellate review authority over the court making the ruling. Non-binding precedents are decisions from other courts (including trial court orders) which are persuasive and considered in resolving cases, but are not binding on the court addressing an issue.</p>
<p>Usually non-binding precedents are resorted to for questions of common law where the state in question does not have binding precedents. But, it can also be used to interpret statutes and court rules, where a statute or court rule almost identical to a local statute or court rule has been interpreted in another jurisdiction. In particular, interpretations of federal court rules by the federal courts are given great weight as non-binding precedents by state courts whose court rules are modeled upon and almost identical to federal court rules.</p>
<p>A binding precedent is not necessarily binding forever, even when it is not expressly overruled. Changes in statutory law, or later precedents on the same or similar issues, may implicitly repeal the effectiveness of a precedent as well. And, of course, precedents may be distinguished because the facts of the current case, while similar, differ in some material way from those in the precedent.</p>
<h1>Certified Questions Of Law</h1>
<p>One slight hitch in this system is that a federal court applying state law, for example, in a diversity of citizenship case, which is presented with a legal issue which the state courts have not resolved definitively (i.e. with a binding decision of the state's highest court), may &quot;certify&quot; the narrow unresolved legal question in the case to the state's highest court to resolve on the actual facts present in the federal case, but only as to that isolated issue rather than the case as a whole.</p>
<h1>Declaratory Judgments and Cases Resolved On Alleged Or Agreed Facts</h1>
<p>It is possible for there to be an actual case or controversy in what is called a &quot;declaratory judgment action&quot; filed in a trial court seeking a resolution of an ambiguous or unresolved legal issue prior to anyone incurring actual damages or harm for actually violating the law if it is given one of the possible meanings it could have. There must still be a bona fide dispute between people who imminently need to resolve the legal issue, however, even then.</p>
<p>Many countries allow for judicial or quasi-judicial review of the facial constitutionality of laws in the legislative process before they take effect, but this is not allowed at the federal level in the United States and only a few, if any, U.S. states have such a process.</p>
<p>The reason for an insistence of resolving only actual cases or controversies and only in cases involving people who have &quot;standing&quot; to do so because they have suffered an actual injury, is primarily to prevent precedents from being made in sham litigation between a party and someone who is nominally the opposing party but is actually acting in collusion with the primary party to create a favorable rule of law for future cases where there is an actual dispute.</p>
<p>In a similar vein, sometimes cases are appealed from a trial court decision based upon stipulated or alleged facts, rather than following a full evidentiary trial on the merits.</p>
<h1>Attorney Generals' Opinions</h1>
<p>There is another means of establishing something close to precedents that are only binding upon government officials, which is sometimes quite effective as government officials are the only people who have to resolve a particular legal issue and there may be no one with standing to challenge a legal interpretation in court.</p>
<p>At the federal level, this is done with a legal opinion from the U.S. Attorney General (actually, more specifically, the <a href="https://www.justice.gov/olc" rel="nofollow noreferrer">Office of Legal Counsel</a> within the Department of Justice) that is binding on all federal government employees until a court rules otherwise.</p>
<p>At the state level, this is done with a legal opinion of the State Attorney General that is binding, at least, on all state government employees. In some states, an attorney general's opinion is also binding on local governments, in other states, a local government's lead attorney (e.g. a county attorney, district attorney, or municipal attorney) has that authority in addition to, or instead of, the state attorney general.</p>
<h1>Regulations</h1>
<p>Also, in areas of law where the government enforces the law (as opposed to &quot;private law&quot;), at federal, state and local levels in the U.S., the government can enact a &quot;regulation&quot; interpreting what a law means that has generally applicable legal force unless it actually contradicts a statute, usually after a notice and comment period mandated by an administrative procedures act and subject to judicial review by people who are unhappy with the language of the final regulation for specified reasons.</p>
<h1>Individualized Opinions</h1>
<p>In some areas of tax and regulatory law it is possible to obtain an advanced ruling particular to a specific case regarding its legality (for a fee). In tax law, this is called a &quot;private letter ruling&quot; and this estops the government from treating the person obtaining the ruling as violating the law if the transaction or action taken proceeds as described in the ruling and the statutory law has not changed since it was issued. It is a non-binding precedent for others.</p>
<h1>Private Bills</h1>
<p>Most legislative bodies have the authority to pass certain kinds of &quot;private bills&quot; which modify the law retroactively for the benefit of a particular individual or small group of individuals. Many private bills concern immigration status and historically all divorces were granted and all corporations were formed via private bills.</p>
<h1>Historical Events</h1>
<p>Sometimes, in areas where there is little or no litigation, perhaps because the issue is non-justiciable or nearly so, past practice is given the effect of precedent. Usually these involve issues of constitutional law or international law.</p>
<p>For example, past practice regarding when recess appointments of the President were made was treated as a precedent when determining when a recess appointment is valid.</p>
<p>Similarly, the U.S. Civil War is considered a precedent by some legal scholars regarding the constitutionality of succession of a state from the United States without permission of Congress (at least).</p>
<h1>Especially Authoritative Legal Commentary</h1>
<p>Some statutes are adopted with official commentaries (usually uniform or model acts proposed by the Commission on Uniform State Laws) that are given the effect of precedents.</p>
<p>Also, a series of highly respected academic texts called the &quot;Restatements of the Law&quot; of various kinds of law (e.g. Contract, Torts, Judgments) which are published by a group affiliated with the American Bar Association with a highly respected process, are frequently given the effect of common precedents or majority rules of U.S. common law jurisdictions, by U.S. Courts in cases where the state in question does not have a precedent in place already regarding an issue addressed by the Restatement.</p>
<p>Opinions expressed in certain renowned academic treatises that are the leading comprehensive academic statements of the law in a field are also often treated as almost equivalent to a precedent. Likewise, a handful of famous legal treatises in effect at the time of the formation of the United States (i.e. 1776 or 1789 when the constitution was adopted) are often treated as authoritative statements of the  state of the law at that time which has relevance as a precedent.</p>
