Why follow precedent

Free statement of participation on completion of these courses. Badge icon Earn a free Open University digital badge if you complete this course, to display and share your achievement. Create your free OpenLearn profile. Course content Course content. Legal skills and debates in Scotland Start this free course now. Free course Legal skills and debates in Scotland. There are three essential elements to this system of precedent: a court hierarchy binding precedent accurate law reporting.

You should now watch the following video which explores precedent. Skip transcript: Exploring precedent Transcript: Exploring precedent. When judges began recording their own decisions in the 16th century, they were producing the precursors of modern law reports. Whether they wrote their decisions down primarily for posterity or to aid the consistency of their decision making, we cannot be sure.

The appellant, who was a fishwife, was a passenger in a tramway car which was proceeding in the direction of Colinton But as the hearing of cases became more formalised and law reporting more structured, a doctrine of precedent arose.

What precedent means to me really is the idea that there are decisions of higher courts which will be binding on lower courts. Precedent is a different sort of law to statute or legislation. Legislation is made by Parliament and interpreted by judges. Precedent is judge-made law. The court has to search for the principle underlying the area of law that's being applied.

And precedent, in the sense of cases decided on a similar issue, either similar legal issues or similar factual issue, will help guide that decision. And underlying most of Scots law, I think, is a desire to try and maintain the principle and to work out the principle behind what we're doing. It's a fundamental principle of justice that like cases should be decided alike, and different cases should be decided differently. And so what precedent gives us IS a store of the way previous cases have been decided.

My Lord, turning now to the case of Donoghue against Stevenson - this was reported in the volume of session cases. Donoghue and Stevenson established a really important principle in the law of delict - as it's called in other jurisdictions, tort. This case regarding the decomposed snail in the ginger beer bottle.

Donoghue and Stevenson provided really the foundation of the modern law of negligence. And because it was decided in the House of Lords, it established that principle not only for Scotland, but also for the rest of the United Kingdom, and indeed for the Commonwealth.

Donoghue against Stevenson was a majority decision of the House of Lords. The judges disagreed as to the outcome. Lord Buckmaster gave the main dissenting opinion for the minority.

But for the majority, it was the opinion of Lord Atkin that has resonated subsequently with lawyers and judges alike and upon which the modern law of negligence is based. The doctrine of stare decisis confers many benefits on the American judicial system.

The most obvious disadvantage to stare decisis is the risk, occasionally borne out, that poorly reasoned precedents may become part of the legal fabric.

There is a remedy when this occurs, however. The doctrine of stare decisis does not wholly isolate precedents from review. Congressional action by statute may overturn judicial decisions on statutory issues, and constitutional amendments may overturn judicial decisions on constitutional issues.

Remedial legislative action is frequently not required, however, because the judiciary may overturn its own decisions when certain conditions are met. Below, Part II discusses how precedents can lose their binding effect through judicial action and explores principles that guide remedial judicial action set forth by the Supreme Court.

In the federal system, the Supreme Court may overturn its own precedent. Factors particularly relevant to this assessment include a workability, b reliance, c abandonment, and d legitimacy.

In Payne v. Tennessee , the Court overturned two precedents— Booth v. Maryland [26] and South Carolina v. Gathers [27] —to hold that the Eighth Amendment did not prohibit a capital sentencing jury from considering victim impact evidence. Planned Parenthood , the Supreme Court declined to overturn Roe v. The Supreme Court has never clarified the exact weight to give to the workability factor or how to balance workability against other competing considerations. In Roper v. Simmons , for example, the Court held that the Eighth Amendment prohibited the death penalty for minors, [33] overturning the contrary precedent of Stanford v.

Courts also consider reliance interests in deciding whether to overturn a precedent. United States , [38] the Court also alluded to reliance interests in declining to overrule Miranda v. He did so in Citizens United , a decision overturning two major campaign finance decisions, Austin v. Michigan Chamber of Commerce and part of McConnell v. Louisiana went out of their way to explain and justify their views on when constitutional precedent may be overturned.

All three justices said constitutional precedent is merely a matter of court policy or discretion, more easily overturned than a precedent about a law. Sometimes, they said, constitutional precedents can be overruled if later judges view them as wrongly decided or reasoned. Abortion foes have been preparing practically since Roe was decided to overturn it. They have set both the political conditions and legal justification to overturn Roe, and perhaps this year it will be the time when it finally happens.

Portsmouth Climate Festival — Portsmouth, Portsmouth. Edition: Available editions United Kingdom. Become an author Sign up as a reader Sign in. How much importance does the Supreme Court place on prior decisions? David Schultz , Hamline University. This type of split also happens between federal courts of appeal, sometimes with three or four parts of the country under different interpretations of a given federal law.

The alternative to the common law system is called a civil law system. In a civil law country, the legislatures pass very specific statutes, and these are applied by the courts. Each judge who decides a case looks to the statute, rather than the previous cases, for guidance.

In theory, in ambiguous cases each judge is free to reinterpret the statute as necessary to fit the facts of the specific case. Although this interpretation need not draw on previous decisions by other judges, civil law judges do try to ensure some consistency in the application of the law by taking into consideration previous court decisions. Louisiana retains some of the civil law procedures that were in force before it joined the United States. Previous Next. The Importance of Precedent.