Advantages And Disadvantages Of Precedent

Case law is one area of the law that is constantly developing and changing in reaction to changing perceptions and further court rulings that may supersede previous case laws (Legal dictionary - case law, 2015). Stare Decisis is a common law doctrine based on practicing law by referencing former decisions or cases (Miller, 2014).

Stare Desis is Latin for “Standing by decided matter.” According to the Legal Dictionary, the doctrine of stare decisis also known as the precedent law, began in 12th century England, when King Henry II established the common law. According to stare decisis the decisions of a higher court, such as an appellate court, or Supreme Court become obligatory stare decisis, on lower courts which means that whatever the higher courts say is usually what the lower courts have to follow. It is a rare thing for the Supreme Court to overturn one of its own decisions that has been held as binding precedent. In 1896, the U.S. Supreme Court made a landmark decision in the case of Plessy v. Ferguson, when it looked at the case that allowed racial segregation in public facilities. This decision held stare decisis for nearly 60 years, until the case of Brown v. Board of Education was heard in 1953. Brown v. Board of Education was a case that took place 1951. In the case thirteen parents filed a civil law suit in U.S. District Court in Topeka, Kansas, regarding their 20 children. The plaintiffs, which is the parents of the children, demanded that the school district take away its policy of racial segregation that was set by the landmark case Plessy v. Ferguson which stated that the children would have separate facilities but would still be equal (which they never really were). After a long and unsuccessful road with the lower courts, the case was taken to the U.S.

It is often believed that the relationship between certainty and flexibility in judicial precedent has struck a fine line between being necessary and being precarious. The problem is that these two concepts of judicial precedent are seen as working against each other and not in tandem. There is proof, however, that as contrasting as they are on the surface they are actually working together to achieve one common goal.

a. Stare decisis is the legal principle of determining points in law according to precendets set by previous legal cases with similar conditions .

In addition, Case Law Reasoning was used to determine the outcome. Case Law Reasoning is when courts take prior cases, also known as precedents, and apply these cases to guide in the decision making processes. This application of taking prior cases to assist in the conclusion of current cases is known as stare decisis. Because case facts often vary, several cases are usually brought up to expand and make it possible to have a factual determination. In addition, several cases are brought up because moral ideas and the acceptance of such will change over time. Having

27). By following this doctrine of precedent, stare decisis, judges are bound to follow the ratio decidendi, the reasons given, for the rulings in previous cases from higher up in their jurisdictional hierarchy. Rulings from other jurisdictions can also be used as persuasive force and argument, as can the obiter dicta, the judges’ comments other than those given as the reason for the ruling. In this way Judge made law resolves conflict and injustice by ruling consistently with rulings made in previous, characteristically similar cases. An inconsistent approach to similar situations cannot equate to being fair, just or equitable. In this way the ALS is not biased or prejudice, is applied equally to all, and ensures that the law is based on fairness and justice.

Not overruling and thus strengthening previous rules, promotes certainty, predictability and consistency. As stated in Lawrence v. Texas overruling can bring upon an unjustifiable result under principles of Stare Decisis and seriously weaken the court's capacity to exercise the judicial power and to function as the supreme court of a nation dedicated to the rule of law (Lawrence).

Stare decisis “to let the decision stand” operates in a pyramid-type fashion and is the doctrine that judicial decisions stand as precedent for cases arising in the future. It is a fundamental policy of our law that, except in unusual circumstances, a court’s determination on a point of law will be followed by courts of the same or lower rank in later cases presenting the same legal issue, even though different parties are involved and any years have elapsed.

Legal cases are generally decided upon when a judge applies the law to the facts of the case; however, the Constitution is ambiguous which means it can be comprehended differently. The way the Constitution is translated in today 's society and applied to modern laws is a responsibility that the Supreme Court justices must uptake. Many factors are believed to play a role in how exactly justices finalize and make their decision, which is why political sciences created three different models of judicial decision making. The legal model, attitudinal model, and strategic model help us grasp a better understanding of what may influence the decision making process. As stated earlier, some decisions are based on the law being applied to the facts, and this decision process is explained in the legal model. The legal model also expresses how justices, in addition to using facts and the law, can use information from previous and almost equivalent cases helping them determine their decisions. Unlike the legal model, the attitudinal model explains how justice’s policy preferences can influence their decision. This model shows how legal text of the Constitution could possibly be ignored, and instead the justices’ own opinions, just like politicians, would guide them through the decision making process. According to Unit 8 Video Engager, it is believed that the justices may take this approach due to the fact that they are entitled to a

Stare Decisis plays a large role in Judicial Restraint. Stare Decisis is sticking to an established ruling that was handed down by past judges or jurors. A form of judicial restraint is called the political question doctrine, and it is significant in understanding this interpretation of the law. The political question doctrine is when a court acknowledges that the constitution is violated but does not decide to act. There are plenty of examples of Judicial Restraint throughout our history but the one that stands out the most in my mind is Gore Vs. Bush. In this case the Florida supreme courts methods of recounting the presidential ballots was considered and ruled as having violated the Equal Protection Laws which is under the fourteenth amendment in a presidential election. Everyone seems to know that something wrong was done, but no one really understands what happened. Before this debate I didn’t realize that this was an example of Judicial Restraint. And this is why I caint agree with either interpretations of the law.

It is recognised that Australia’s System of decision making in the court is in need of reform, if the

In this case study, I will explore the concept of stare decisis and wherether it is in exorable command. I will be explaining what the court means when it say that” stare decisis is not an inexorable command”. Also what it would mean for the American system of criminal justice, if stare decisis actually was “inexorable command”.

Some judges in their obiter dicta have declared their inclination to disregard the Parliament’s legislative objectives, and therefore limit parliamentary sovereignty if the rule of law is vulnerable or if the circumstances demand “a principle established on a different hypothesis of constitutionalism” . They have also suggested that, while the British Constitution is dominated by parliamentary sovereignty, “The rule of law enforced by the courts is the ultimate controlling factor on which our constitution is based” . This represents a possibility of stretching the dominance of the rule of law in constitutional law so that it becomes more powerful than parliamentary sovereignty in the British Constitution .

Rigidity. Due to the lower courts having to follow decisions of higher courts, coupled with the fact that the Court of Appeal has to follow its own past decisions, it can make the law too inflexible so that bad decisions made in the past may be perpetuated. -

The lower courts are bound by the House of Lords so they have to apply