Stare Decisis

10 Key excerpts on "Stare Decisis"

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  The Politics of the Common Law

  Perspectives, Rights, Processes, Institutions

  • Adam Gearey, Wayne Morrison, Robert Jago(Authors)
  • 2013(Publication Date)
  • Routledge-Cavendish

    (Publisher)

  Put another way: one part of legal research is about the technical problems of how to find or look up ‘the law’; but faced with one set of concrete results of those searches – i.e. a range of decisions and judgments – how should the lawyer rank and differentiate the material that he or she finds? One answer is by following the doctrine of precedent. It is relatively easy to paraphrase scholarly descriptions of precedent; it is usually explained by reference to the English translation of the Latin phrase ‘Stare Decisis’, which literally translates as ‘to stand by decided matters’. The phrase Stare Decisis is itself a shortened version of the Latin phrase ‘Stare Decisis et non quieta movere’, ‘to stand by decisions and not to disturb settled matters’. In student books it is common to run together Stare Decisis and the modern doctrine of precedent as if they were the same, but technically, Stare Decisis is the older term referring to the practice before the modern doctrine of ‘binding precedent’; it appears to have given judges flexibility, one stood by previous decisions but weighed up their effects and their meaning in the overall understanding of the common laws’ conception of the just state of affairs for the community. Precedent, in its modern form, i.e. binding precedent, developed from the looser Stare Decisis in the course of the nineteenth century and took on more of the character of a binding set of rules, whereby the decision of a higher court within the same national or provincial, state or district jurisdiction acts as binding authority on a lower court within that same jurisdiction. The decision of a court of another jurisdiction only acts as persuasive authority. The degree of persuasiveness is dependent upon various factors, including, first, the nature of the other jurisdiction and second, the level of court which decided the precedent case in the other jurisdiction

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  Understanding Law in a Changing Society

  • Bruce E. Altschuler, Celia A. Sgroi, Margaret R. Ryniker(Authors)
  • 2016(Publication Date)
  • Routledge

    (Publisher)

  One of the most basic principles of common law legal systems in general, and of the U.S. judicial system in particular, is the concept of Stare Decisis. This principle requires courts to adhere to precedent in deciding cases. Justice Harlan articulated the basic tenets of the doctrine in a passage that is particularly revealing given the framework proposed in this Article.

  Very weighty considerations underlie the principle that courts should not lightly overrule past decisions. Among these are the desirability that the law furnish a clear guide for conduct of individuals, to enable them to plan their affairs with assurance against untoward surprise; the importance of furthering fair and expeditious adjudication by eliminating the need to re-litigate every relevant proposition in every case; and the necessity of maintaining public faith in the judiciary as a source of impersonal and reasoned judgments.

  Under Stare Decisis, the “precedent case” controls, in all relevant respects, the result in all future cases presenting similar facts. In its strongest form, Stare Decisis requires the deciding court to follow precedent even though it believes that the precedent was wrongly decided. “Weaker” forms of Stare Decisis recognize that, in the interest of growth and change, courts sometimes will deviate from earlier decisions. In general, however, the basic argument for Stare Decisis can be described as follows: “the previous treatment of occurrence X in manner Y constitutes, solely because of its historical pedigree, a reason for treating X in manner Y if and when X again occurs.”

  While discussion about the doctrine of Stare Decisis is normally framed in terms of whether to follow or abandon a prior decision, these options are certainly not the only ones available to a deciding court. When faced with a set of facts, a judge can also find that no rule relates to those facts and, thus, expand the domain of the existing rule so as to perpetuate its validity. The deciding court could, similarly, interpret the prior rule narrowly so as to require the adoption of a new rule to solve the existing dispute. In the latter case, the court would have managed to effectively abandon precedent without doing so directly. For purposes of this article, these options are treated as indistinguishable since they all involve essentially the same ultimate decision: whether to make a judgment solely based on the rules and principles established in a prior case, or whether to consider the dispute anew.

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  Law, Politics and the Judicial Process in Canada

  • Frederick L. Morton(Author)
  • 2002(Publication Date)
  • University of Calgary Press

    (Publisher)

  Obviously, a legal system in which judges could decide cases any which way, manifesting prejudice, whimsy, ignorance and venality, each decision being a entity in itself unconnected with the theory, practices and precedents of the whole, would be a sorry system, or, one might say, no system at all, and a source of little comfort either to attorneys or litigants. Speaking of Stare Decisis many years ago, Judge Maxwell said: In the application of the principles of the common law, where the precedents are unanimous in the support of a proposition, there is no safety but in a strict adherence to such precedents. If the court will not follow established rules, rights are sacri-ficed, and lawyers and litigants are left in doubt and uncertainty, while there is no certainty in regard to what, upon a given state of facts, the decision of the court will be. One concludes, after a little thought, that Stare Decisis is the instrument of stability in a legal system, that it furnishes a legal system with certainty and predictability, and clothes a legal system with reliability; in addition, it assures all persons of equality and uniformity of treatment and judges with an instrument of convenience and expediency. In short, Stare Decisis pre-serves the judicial experience of the past. After a little more thought, however, one also sees that Stare Decisis is an instrument of conservatism, of immobility, of eyes-in-the-back-of-the-head, of stultification. The application of the same rule, decade after decade, long after changed conditions have robbed the rule of its validity, makes the rule a troublesome fiction. But, American high courts do not hesitate to overrule their own prece-dents when social, economic, or political change demand a corresponding change in the law. Cardozo has said that, If we figure stability and progress as opposite poles, then at one pole we have the maxim of Stare Decisis and the method of decision by the tool of 3

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  Precedent in the World Court

  • Mohamed Shahabuddeen(Author)
  • 1996(Publication Date)
  • Cambridge University Press

    (Publisher)

  8 Stare Decisis Stare Decisis does not apply A leading English work says that the 'general orthodox interpret- ation of Stare Decisis . . . is stare rationibus decisis ("keep to the rationes decidendi of past cases")'. 1 It is not in dispute that the doctrine does not apply in relation to the Court. 2 There is a broad reason of prin- ciple why it should not. Grisel put it thus: '[QJuelque souhaitable que paraisse la stabilite dans n'importe quel ordre juridique, celui des Nations a aussi besoin d'une certaine souplesse, qui permette de prendre en compte la diversite des circonstances et qui est d'ail- leurs en harmonie avec l'extreme decentralisation du pouvoir dans la societe internationale.' 3 Whatever might have been the ratio decidendi of the Status of Eastern Carelia, the literature makes it clear that the contemporary understanding was that the holding could later be departed from precisely because Stare Decisis did not apply; this lack of assurance as to the precise status of the holding was one of the reasons for United States reservations on the question of acceding to the Protocol of Signature of the Statute of the Court. 4 In chapter 2 reference was made to remarks in the jurisprudence about the importance of maintaining consistency in holdings. Some 1 Cross and Harris, Precedent, p. 100. 2 Maarten Bos, 'The Interpretation of International Judicial Decisions', Revista Espanola de Derecho International, 33 (1981) p. 46. 3 Etienne Grisel, 'Res judicata: l'autorite de la chose jugee en droit international', in Bernard Dutoit (ed.), Melanges Georges Perrin (Lausanne, 1984), p. 141. 4 See Michael Dunne, The United States and the World Court, 1920-1935 (London, 1988), p. Ill, citing Judge Moore's view. As to the relevant reservation, see footnote 2, chapter 2, at p. 13 supra. 97 Precedent in the World Court of the observations are strong; but they do not amount to an endorsement of the strict doctrine of binding precedent.

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  Legal Analysis and Writing

  • William Putman(Author)
  • 2012(Publication Date)
  • Cengage Learning EMEA

    (Publisher)

  Due to electronic rights, some third party content may be suppressed from the eBook and/or eChapter(s). Editorial review has deemed that any suppressed content does not materially affect the overall learning experience. Cengage Learning reserves the right to remove additional content at any time if subsequent rights restrictions require it. 12 P A R T I I NTRODUCTION TO A NALYTICAL P RINCIPLES AND THE L EGAL P ROCESS A case that is precedent is often called “on point.” Chapter 8 discusses the process and steps to follow when determining whether a court opinion may apply or be relied on as precedent. Stare Decisis. The doctrine of Stare Decisis is a basic principle of the case law system that requires a court to follow a previous decision of that court or a higher court when the current decision involves issues and facts similar to those involved in the previous decision. In other words, similar cases will be decided in similar ways. Under the doc-trine, when the court has established a principle that governs a particular set of facts or a specific legal question, the court will follow that principle and apply it in all future cases with similar facts and legal questions. In essence, Stare Decisis is the doctrine pro-viding that precedent should be followed. Stare Decisis A basic principle of the common law system that requires a court to follow a previous decision of that court or a higher court when the current decision involves issues and facts similar to those involved in the previous decision. The doctrine providing that precedent should be followed. For Example A statute of state X prohibits employment discrimination on the basis of gender. In the case of Ellen v. Employer, Inc., an employee was fired because the employee was homosexual. The supreme court of state X interpreted “discrimination on the basis of gender” as used in the statute to include discrimination based on an individual’s sexual preference.

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  The WTO and the Environment

  Development of competence beyond trade

  • James Watson(Author)
  • 2013(Publication Date)
  • Routledge

    (Publisher)

  The quote from O’Connell is directly linked to the workings of international lawyers at the ICJ. Indeed, as a part of a settled and predictable legal system it is considered that consistency of decision is of paramount importance:

  It is a fundamental principle of the administration of justice that like cases should be decided alike. Inconsistency in judicial decisions affronts even the most elementary sense of justice. In this sense the principle of Stare Decisis , of abiding by previous decisions, figures prominently in most legal systems, including all of those of the Member States of the (European) Communities.10

  This suggests that reliance on legal decisions has a strong part to play in the international legal system, though the question of whether precedent is also in play is disputable:

  Precedents are not binding authorities in international law, but the English theory of their binding force merely elevates into a dogma a natural tendency of all judicial procedure. When any system of law has reached a stage at which it is thought worth while to report the decisions and the reasoning of judges, other judges inevitably give weight, though not necessarily decisive weight, to the work of their predecessors.11

  Therefore the consideration of precedent in the international arena may well be different from that of a precedent with a binding nature at a national level, such as that in the UK or USA. It is out of a concern for consistency to consider like cases alike, rather than a bound duty. The process of international tribunals looking to previous decisions does not need a specific treaty provision to endorse it; this is simply a normal practice of decision-making bodies.12

  It can also be stated that reliance on decisions in international law exists because the form of law often requires judges and advocates to determine whether or not they have dealt with a similar problem before.13 If they have it is often the case that they will return to the reasoning of that case to determine if it can be applied to the present dilemma. This can be seen clearly in the words of King James I: ‘Reason is too large. Find me a precedent and I will accept it.’14

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  The End of Obscenity

  The Trials of Lady Chatterley, Tropic of Cancer & Fanny Hill by the Lawyer Who Defended Them

  • Charles Rembar(Author)
  • 2015(Publication Date)
  • Open Road Media

    (Publisher)

  Rules of law are, in their essence, rules of degree. Cases of the same degree occur only rarely; Parmenides is present, but Heraclitus dominates. You cannot, because the water flows, enter the same stream twice. Even if all the testimony and all the documents in the matter at bar were precisely the same as those in the precedent cited, the two cases would not be the same. In the time between, the world would have changed. The world as it exists when the case is tried itself is a fact in the case.

  A rigid insistence on repeating earlier decisions is in reality a denial of the principle. A true devotion to precedent may require different results in situations superficially similar. Stare Decisis is hardly rule by rote; it is rather a gravitation toward the legal experience of the past. Allowance having been made for change in circumstance, it demands that courts should try to decide things now as they decided them before—subject always to the capacity for modification that is part of each living cell of the law. Courts are naturally influenced by what seems just in the specific human situations before them, but they have no authority to decide each case solely according to what seems just, and they rarely—very rarely—make a rule that is entirely new. Indeed in some fields of law, where it is especially important that there be freedom to act in reliance on a given legal fundament, courts will not wander from what is established; they wait for legislatures to make the move. And throughout the law, the courts are not likely to change their ways very much at a time.

  There are several reasons why they are not:

  (1) Stare Decisis is an anticorruption device. If courts are not bound by external rules, if they are not called upon to explain their decisions in terms of precedent, corruption is made easier. “What is right” in a particular case too readily becomes what is right for the particular judge or his friends. There should be a single set of laws for rich and poor alike; that much is easy. There should also be one set of laws for those who helped the judge get on the bench and those who opposed, for those who have good stock-market information to give the judge and those who don’t, for the political clubhouse and the rest of the neighborhood, for the organized group and the unattached private citizen. Stare Decisis

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  Ratio decidendi.

  Guiding Principles of Judicial Decisions. Vol. 1: Case Law.

  • W. Hamilton Bryson, Serge Dauchy, W. Hamilton Bryson, Serge Dauchy(Authors)
  • 2013(Publication Date)
  • Duncker & Humblot

    (Publisher)

  Buller [counsel for the prosecution] find any precedent in the history of England, for an indictment of this kind, to give them time till next term to find any. 17 Substantively, the Stare Decisis doctrine arose whenever the barristers or judges relied on prior decisions that they claimed were authoritative. The common law judges often said they believed in and adhered to the doctrine. In Hanslap v. Cater, 18 Chief Justice Matthew Hale followed precedents against his inclination, for he said it was his rule, Stare Decisis. Nearly a century later, in the settlement case of Rex v. Inhabitants of Underbarrow and Bradley field, 19 Lord Mansfield sta-ted, For several reasons.. .we should not depart from the adjudged cases; but chiefly from the inconvenience of altering and overturning settled determinations. It is best, Stare Decisis. And in Keiley v. Fowler, 20 Mansfield's colleague, Sir Eard-ley Wilmot, Chief Justice of the Court of Common Pleas, adhered to prior deci-sions in giving a tortured interpretation to words in a will, because 'Stare Decisis' is a first principle in the administration of justice, and this is not from any fear of bringing appeals or writs of error in particular cases ... but because these cases have furnished the light by which conveyancers have been directed in settling and transferring property from one man to another. 21 There were, nonetheless, limits. Stare Decisis was not adhered to slavishly, as Mansfield's predecessor, Sir Dudley Ryder, pointed out in Rex v. Inhabitants of St Botolph Bishops gate. 22 There the court held that a woman's settlement was not suspended during coverture by her marriage to a man who had no settlement in England, and on being presented with conflicting precedents, Ryder observed, The maxim Stare Decisis is a good general maxim; but it is not always to be adhered to; and it must be allowed that the Court is as well warranted in the pre-sent case to depart from what was holden in the case of Rex v.

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  US Supreme Court Doctrine in the State High Courts

  • Michael P. Fix, Benjamin J. Kassow(Authors)
  • 2020(Publication Date)
  • Cambridge University Press

    (Publisher)

  As Lee cogently summarizes, the state of affairs was one in which: On one hand, the framing generation perceived the importance of stability and certainty in the law, and thus embraced a rule of following past decisions. On the other hand, a declaratory understanding of the common law gave rise to an exception permitting some form of reexamination of the merits of a prior decision. The unresolved tension involves the interplay between these two propositions. A strong rule threatens permanently to enshrine the errors of the past with no hope for internal correction, while a pure declaratory exception swallows the rule and its aim of stability. (1999, 667) The US Supreme Court would eventually adopt a sort of middle ground between these two extremes. The Court viewed vertical Stare Decisis in absolute terms, while the binding nature of its own precedents was never seen as absolutely binding to the degree that was adopted in London Tramways (Ger- hardt 2011; Goodhart 1930). While this view of precedent is weak compared to London Tramways standard, the historical evidence shows that by the mid- nineteenth century US courts had nonetheless begun to view Stare Decisis as a general rule to be followed except in rare circumstances (Gerhardt 2011; Goodhart 1930; Kempin 1959). Beginning with the Marshall Court, the US Supreme Court simultaneously noted the importance of its own precedents while eschewing any absolute notions of Stare Decisis. 20 One of the earliest examples of this comes in Cohens v. Virginia, 21 where the Court holds dicta from Marbury v. Madison 22 19 See, for example, the decision of the Supreme Court of the United Kingdom in Knauer v. Ministry of Justice, [2016] UKSC 9 at [23], where the Court declares that it “should be very circumspect before accepting an invitation to invoke the 1966 Practice Statement” to overturn a decision of the House of Lords.

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  Legal Method

  • Ian McLeod(Author)
  • 2020(Publication Date)
  • Red Globe Press

    (Publisher)

  (Judicial comity simply means the mutual respect which judges have for their colleagues.) It is not surprising, therefore, that the courts in any developed legal system are likely to follow precedent to a significant extent. Certainly there is nothing peculiarly English about such a practice. However, the idea of precedent may also develop in a rather narrower sense, with the result that courts may regard themselves as being actually bound to follow earlier decisions. The use of precedent in this narrow sense is largely peculiar to English law, although it is also evident to some extent in the other common law jurisdictions which derive from English law. A narrow view of precedent: the doctrine of Stare Decisis The Latin tag of Stare Decisis is sometimes attached to the doctrine of binding precedent as the doctrine Stare Decisis , but since this phrase translates as ‘to stand by decisions’, it adds nothing to an understanding of the concept. Taking a more functional view, at its simplest the doctrine of binding precedent states that all courts bind all lower courts, and some courts may also bind themselves. The two halves of this proposition may respectively be labelled the vertical and horizontal dimensions of precedent. We will consider both these dimensions in due course, but before doing so it will be useful to draw a distinction between the doctrine of binding precedent and the doctrine of res judicata . The distinction between binding precedent and res judicata The practical administration of justice in any legal system plainly requires that once a case has been decided the parties should be bound by the decision, because endless reopening of cases is wasteful of resources, as well as creating injustice to those who have to defend themselves repeatedly in respect of the same matter. The point at which finality will be imposed will depend on the 8.3 8.4 8.5

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