On many issues, reasonable people may disagree. If two of these people are judges, the tension between two precedents can be resolved as follows. What words share a root or word element with a precedent? Prothero`s case defied all rules and precedents, and Brodrick was not prepared for his own verdict. In civil law and pluralistic systems, such as Scottish law, precedents are not binding, but case law is taken into account by the courts. Occasionally, a judge of a lower court expressly declares that he does not agree with the judgment he has rendered, but that he is required to do so under binding precedents. [47] Note that subordinate courts cannot escape the binding jurisprudence of higher courts, but a court may deviate from its own previous decisions. [48] In the United States, in the late 20th and early 21st centuries, the concept of a U.S. court that takes into account foreign law or precedents was considered controversial by some parties. The Supreme Court is divided on this issue. This criticism is new because at the beginning of the history of the United States, the citation of English authority was omnipresent. One of the first acts of many new state legislators was to incorporate English common law into state law. See here.
English case citation was common in the 19th and until the 20th century. Even in the late 20th and early 21st centuries, it is relatively uncontroversial for U.S. state courts to rely on English decisions on pure general (i.e., judicial) law. Case law refers to a court decision that is considered the power to rule on subsequent cases with identical or similar facts or similar legal issues. The precedents are included in the doctrine of stare decisis and require the courts to apply the law in the same way to cases involving the same facts. Some judges have said that precedents ensure that people in similar situations are treated equally, rather than on the basis of the personal opinions of a particular judge. A case decided by a multi-judicial committee could result in a split decision. Although only the majority opinion is considered a precedent, an overturned judge can still issue a dissenting opinion. Common models for dissenting opinions include: Stare decisis reduces the number and scope of legal issues that the court must resolve in a legal dispute.
It is therefore a time saver for judges and litigants. Once a court clarified a particular legal issue, it set a precedent. Thanks to stare decisis, claims can be dismissed quickly and efficiently, as disputes can be resolved using rules and principles that have been previously adopted. Stare decisis can thus encourage the parties to settle cases amicably, thus increasing the efficiency of the judiciary. [30] U.S. courts of last instance recognize a rebuttable presumption against setting aside their own previous decisions. In earlier eras, it has often been suggested that this presumption does not apply if the earlier decision was manifestly erroneous in the opinion of the current members of the Court. But when the Supreme Court makes similar noises today, it is sharply criticized.
At least within the Academy, conventional wisdom now claims that an alleged demonstration of errors is not enough to justify the annulment of an earlier decision. . Conventional wisdom is wrong when it suggests that any coherent doctrine of the decision of the gaze must include a presumption against the creation of precedents that the current court manifestly considers erroneous. Indeed, the doctrine of stare decisis would not be a doctrine at all if the courts were free to set aside an earlier decision simply because they had rendered a decision other than the original case. But when a court says that a previous decision is manifestly flawed, it says not only that it would have made a different decision from that of the original case, but also that the previous court went beyond the realm of vagueness created by the relevant source of law. . Americans have believed since its inception that court decisions could help “liquidate” or regulate the meaning of ambiguous provisions of written law. Subsequent courts should, as a general rule, adhere to such “liquidations”. However, to the extent that the underlying law was determined, it was not considered that the courts were also bound by precedents that misinterpreted them. . Among the current members of the Court, Judges Scalia and Thomas seem to have the greatest confidence in the certainty of the legal texts submitted to the Court.
Not surprisingly, they also seem most willing to override previous decisions of the Court. . Prominent journalists and other commentators suggest that there is some contradiction between the mantra of these judges of “judicial restraint” and any systematic review of precedents. But if one believes in the certainty of the underlying legal texts, one must define “judicial restraint” not only in the sense of fidelity to the previous one; We can also speak of fidelity to the texts themselves. .