Legal Aspects of Health Information

Systems

Sources of Law: Common Law

Common Law

Before you begin this lecture, please review “Sources of Law: U.S. Constitution” and “Sources of Law:
Statutes.”

Also known as judge-made law, common law arises out of judicial opinions on legal issues and first
impression or great importance. So, what gives rise to a new common law?

1. A judge must interpret a law created by the legislature in order to answer the legal question.
2. The legislature has not yet passed a law that would answer the legal question in the case.
3. The judge must determine if a law is constitutional, which means that it is consistent with
applicable provisions of the state constitution or U.S. Constitution.

Judicial Principles

Generally, judges hear evidence presented by adverse parties, such as plaintiff and defendant, and
render binding decisions. Judges have discretion to decide which sources of law are relevant to
answering the legal question or questions at hand. When deciding a case, a judge may consider any or
all of the following sources:

• Previous court decisions

• Constitutional provisions
• Statutes and regulations

Stare Decisis Doctrine

Stare decisis is Latin, meaning “to stand by things already decided.” This doctrine requires judges to
apply a rule of law and/or legal principles established in a previous court decision, known as a

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precedent, to decide legal questions in a present case based on a set of facts similar to the precedent.
To state it another way, stare decisis requires that judges apply the same reasoning to new lawsuits that
has been used in previous cases. Important and practical effects of this doctrine include:

• Precedents established by higher court decisions are binding on all lower, related courts
o For example, appellate court decisions are binding on all trial courts; Supreme Court
decisions are binding on all state and federal courts
o All SCOTUS decisions must always be consistent with one another
• Judges must always follow this doctrine and apply the relevant precedent, unless there is a
strong legal reason to alter the precedent, such as a change in the statutory scheme or state
constitution since the prior judicial decision was made

There are two types of precedents: mandatory and persuasive:

• Mandatory precedent is the primary legal authority a judge must use to answer a particular legal
question because the precedent case and the rule of law it stands for are from the same
jurisdiction and deal with the same or a substantially similar set of facts
• Persuasive precedent is a secondary legal authority that a judge may apply to answer a legal
question because the precedent deals with the same or a substantially similar set of facts but is
not binding on the court because it was decided in a different jurisdiction or a lower court

Doctrine of Res Judicata

The Latin meaning of res judicata is “the thing has been judged (decided).” This doctrine establishes the
principle that a matter may not be relitigated once it has been judged on the merits. This doctrine places
limits on claims and issues that have been judged on the merits.

Once the judge renders a decision on a specific claim or cause of action between specific parties, that
decision is final, and that claim may not be relitigated by the parties. This is known as claim exclusion.

• For example, Bob sues Dave for assault and loses. Bob appeals the decision and loses again. Bob
may not initiate a new lawsuit against Dave for the same alleged assault
• For example, Bob sues Dave for assault and wins $500. Bob cannot sue Dave again for assault to
recover additional damages

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Once a judge issues a decision on a specific issue related to a claim between two parties, that decision is
final and may not be relitigated, even in a trial on a different claim. This is known as issue exclusion.

• For example, in Bob’s assault case against Dave, the judge decided that Dave did not intend to
hurt Bob, even though Dave accidentally hit Bob with a flagpole he carried as he passed Bob in a
narrow hallway
• For example, if Bob later sues Dave for battery arising out of the same factual incident, then Bob
cannot get a different determination on the issue of intent. This is true even if the parties try
and litigate the battery claim before a different judge. The determination of the issue follows
the parties

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