Nurse convicted of killing seven babies is third murderer in recent times to avoid hearing Lucy Letby has become the latest killer to refuse to attend their sentencing, amid calls for a new law to . Notice that the claim here is a modest one. The practice, therefore, aims to prevent the passage of time from altering this kind of treatment. Possibly in a legal system that attaches significant value to having democratic legislation as the main source of law, the reasons for leaning towards the persuasive mode are more demanding. J Gardner, Law as a Leap of Faith (OUP 2012) 192. In the persuasive mode, this obligation does not exist, at least not strictly speaking. For our purposes, a hard case is one where there are good reasons to believe that the court may arrive at different conclusions concerning the statutes application. The upshot is that such a precedent typically ceases to be part of the law.89, The grounds on which a court may overrule vary across jurisdictionsand also within one legal system. I will not explore these other approaches, but I do not think my account is incompatible with them. What happens if there is no legal precedent in a case? What is the importance of judiciary in a society? On this view, the mere fact of a precedents existenceregulating the case at handis a reason for the later court to follow it. This can affect reliability, for people rely on this de facto pattern instead of relying on the law itself.99. Legal precedents are when a case's circumstances and legal requirements match those of a contemporary legal dispute; unless a party can demonstrate that it was incorrectly resolved or that it differed materially, the precedent will typically govern the outcome of a later similar case. Precedents made in higher courts are followed by lower courts in the same hierarchy. What is needed, in order to establish the non-contingency of the reason in favour of following precedent, is the normative backup of a positive second-order reason.47 In the second subsection, I will argue that a legal systems commitment to the rule of law can do this work. Before doing so, however, it is important to consider one important methodological caveat. That stability is instrumentally valuable to reliability is a view present in T Benditt, The Rule of Precedent in L Goldstein (ed), Precedents in Law (Clarendon Press 1987) 91; Duxbury (n 2) 1601. If there are two correct ways of deciding the case, but the fact that one of them is supported by precedent does not count in the balance, then ceteris paribus parties have a 50% chance of anticipating the courts decision rightly. To begin with, in many civil law countries the binding effect of precedents is usually reserved for the decisions of specific courts onlytypically, higher courts and constitutional courts. When Is Oral Argument Important? A Judicial Clerk's View of the Debate It means that there are no relevant differences between the two cases that would warrant a different treatment. But judges seldom adjudicate disputes simultaneously; rather, they do it over a period of time. In Latin-America, similar examples can be found in: art 3 of Chiles Cdigo Civil; art 218 of Uruguays Cdigo General del Proceso; and art 17 of Colombias Cdigo Civil. Hence, we loosely say eg this case is governed by precedent. Contrary to this state of affairs, as I have argued, equality requires later courts to give reasons why they will depart from past decisions. According to Twining and Miers (n 55) 2867, the Court of Appeals has restated aspects of the doctrine laid down in Young v Bristol Aeroplane, allowing for departures from relevant precedent when the previous decision is manifestly wrong. Judges are trusted with the power to determine, inter alia, whether facts before them can count as instances of the norms material scope of application. Horizontal stare decisis is the authoritative effect that precedents have on later courts of equivalent hierarchy. Montana judge hands young plaintiffs significant victory in landmark How would both modes treat such a decision? Let us start with stability and reliability. Interpretation appears to blur or even erase the line between the separate law-finding and law-creating roles which many legal positivists ascribe to judges, and the fact that courts always seem to be able to decide cases by interpreting the law may also seem to cast doubt on the idea that the law is incomplete, and hence that judges sometimes . In about a week, Peter, your youngest son, will reach the same age, and he wants to know whether you will allow him to drink wine as well. This proviso is important. Now, suppose you have a commitment not to disappoint the reasonable expectations that your past decisions have created in your children. Doctrine of Stare Decisis. In the civil law tradition, precedents are often used in order to tip the balance in favour of particular outcomes, but are also used as a means to illustrate how a legal point has been dealt with before. precedent | Wex | US Law | LII / Legal Information Institute Conformity to precedent is a distinctive means to advance the rule of law. Nothing in the notion of a content-independent reason prevents this reason from gaining extra weight by reference to some of its substantive merits.94 The idea of content independence guarantees the reason a normative minimum: a nucleus that cannot be reduced but which can become weightier. If they count, then we often say that judges have an obligation, though not necessarily a conclusive one, to decide the case according to the result provided by the norm.38. It is often said, for example, that the rule of law is first and foremost a requirement of good governance. What is the importance of judicial precedent? - LegalKnowledgeBase.com The existence of this reason increases the degree of reliability given to parties vis--vis the null model. This is because, all else being equal, it is contrary to the rule of law to depart from relevant precedent without explaining why. The final decision, which affects equality but does not offer a justification, is legally justified. In a similar vein, see R Kozel, Settled Versus Right: A Theory of Precedent (CUP 2017) 6. Many legal systems give erga omnes force to the decisions of specific courts. Symposium: The importance of respecting precedent. Sometimes, however, this fact does not exist. Under the persuasive mode, later courts do not have an obligation to follow precedent. Here, a precedent should be taken to mean a past decision or past case that is relevantly similar to the case at hand. A Peczenik, The Binding Force of Precedent in MacCormick and Summers (n 18) 463. In virtue of this commitment, departures from the rule of law, as Tom Bingham argued, should have a clear justification.45. and (ii) How does each mode avoid replicating substantively incorrect decisions? Thus, these rulings are universally authoritativenamely, they apply to all future cases that happen to be legally the same. The problem, again, is that this adjudicatory treatment often follows as a matter of contingency, not obligation. The legal philosophy of Ronald Dworkin is one alternative. In more dramatic scenarios, as Raz writes, ones choice does make it right for one to pursue a goal which but for ones commitment to it would have been a wrong goal to pursue.68. Much of the literature has become increasingly technical, partly because of the valuable contributions of nonmonotonic logics and artificial intelligence. Stare decisis ensures that cases with identical facts . Thus, were the Court of Appeal to overrule one of its precedents because it appears right to do so (as in the Practice Statement), that decision would be incompatible with the authoritative mode. This type of commitment can ground robust precedent-following. The argument in this section is as follows. By showing that the null model is both conceptually possible and we may find arguments supporting it, this offers a useful baseline against which precedent-following can better be assessed. First, courts always have a reason to decide precedent-governed disputes by following precedent. I shall pursue the opposite strategy: the reason to follow precedent is content-independent, in the sense that later courts have it whether they agree with how the precedent was decided or not. In this final section, I want to analyse how both modes of precedential reasoning deal with two evaluative questions. Secondly, the null model confronts us with the following challenge. Judge Kathy Seeley's ruling in the youths' favor sets a powerful precedent for the role of " green amendments " in climate litigation. Or assume that it is really important for you not to give your children the impression that you treat them differently when they are similarly situated. There is no denying that the law may offer less guidance, and thus affect reliability, without authoritative applications of it binding later courts. However, by virtue of considerations such as effectiveness, this authoritative force is typically restricted to either vertical (top-down) or horizontal stare decisis. To put it simply, stare decisis holds that courts and judges should honor "precedent"or the decisions, rulings, and opinions from prior cases. Even in that scenario there might be room for various alternatives, depending on, say, whether the past decision was reached by a clear majority, a prestigious judge concurred and so on. See eg P Craig, Formal and Substantive Conceptions of the Rule of Law: An Analytical Framework (1997) Public Law 467; Tamanaha (n 21) chs 79; Waldron, The Rule of Law and the Importance of Procedure (n 23) 45; Waldron, The Rule of Law (n 24); A Zanghellini, The Foundations of the Rule of Law (2016) 28 Yale JL & Human 213, 214. Whether an account is fully descriptive or may be detached, to a sensible extent,75 from a certain practice depends on the accounts purpose. Both options are always possible, given the large field of ongoing adjudication. Otherwise, we face two crucial objections: one descriptive, the other normative. Precedents are often given legal status, but they are not created by a democratic process. My aim is to explain the practice of following precedent in law and provide criteria for evaluating its value. In many cases, precedents are authoritative sources of law, in the sense that if the facts in a later case are legally the same as those of a precedent, the later court is often required to deliver the same decision. Sixteen young Montanans who sued their state over climate change emerged victorious on Aug. 14, 2023, from a first-of-its-kind climate trial. It is not clear whether stability has value in its own right.35 It seems that we value stability not for the sake of stability, but because it is instrumental to the realisation of other values, in particular one which directly bears on the decisions we make in our daily lives: the value of reliability. The purpose of this section is to present some of the tools that are vital for determining whether there is a mode that should be preferred, and for eventually criticising a specific practice of precedent held by courts. In both cases, then, an authoritative mode exists. This is the view associated with the well-known accounts of L Fuller, The Morality of Law (Yale UP 1969) ch 2; Raz (n 12) 21314; J Finnis, Natural Law and Natural Rights (2nd edn, OUP 2011) 2703; J Rawls, A Theory of Justice (first published 1971, Harvard UP 1999) 23543. Raz, The Authority of Law (n 12) 185; Lamond (n 7) 3; Schauer, Thinking Like a Lawyer (n 8) 58. Against this view, see Duxbury (n 2) 34, for whom the common law does not need the doctrine of precedent in order to function. Now, one should be careful not to conflate precedent-following with treating like cases alike or to ground the former in the latter. The Court needs the president's support to enforce its decisions. A precedent is a statement made of the law by a Judge in deciding a case. Aerial footage shows the tree charred but still standing amid a downtown devastated by fire. Finally, precedents can influence the decisions of later courts in various ways. AND The president nominates justices who agree with his approach to executive authority. Put differently, what causes many later courts to pay attention, in a normatively significant way, to the ways in which earlier courts have decided relevantly similar cases? K Stevens, Case-to-Case Arguments (2018) 32 Argumentation 431. Secondly, commitment to the rule of law does not necessarily ground a content-independent obligation to follow incorrectly decided precedents. Unlike the null model, these two modes are consistent with the rule of lawin fact, they are derived from this ideal. The purpose of stare decisis is to promote consistent, predictable rulings on cases of similar nature. The other facts of the case would provide the basis for the exclusionary reason; later courts are excluded from relying on reasons provided by features that were present in the precedent case to defeat the first-order reason for the result. Recently, Robert Mullins, Protected Reasons and Precedential Constraint (2020) 26 Legal Theory 40 has defended an account of what he calls the protected reason model of precedent. It does, however, ground a content-independent reasonagain, pro tanto. This reason could be very weighty if, say, the precedent originates from the highest tribunal in the land. But it is important not to take it for grantedobserving also, as others have done,49 that sometimes following precedent may not necessarily advance the rule of law. Again, possibly yes, if these decisions are exceptional; but not if they count as the general rule. An earlier version of the article was presented to the Edinburgh Legal Theory Discussion Group. Published by Oxford University Press. These legal principles are known as stare decisis. Since stability and reliability are intimately connected, I will focus on reliability to argue against the null model. Finally, the law should have a democratic character. Finally, there is the question of whether the authoritative mode entails judicial law makingat least in the robust form of a law-making power. I do not think, based on the relevant literature,48 that this claim is controversial. First, legal systems have, all else being equal, an interest in preventing judges from making creative innovations in the law. Tamanaha (n 21) 102; similarly, ibid 111. By contrast, whether a norm is legal depends on whether it meets the criteria for legal validity given by the rule of recognition. How can an agent be justified in performing an action she knows to be incorrect? Accordingly, there are three options a lower court has when faced with a wrongly decided precedent: to distinguish; to follow the precedent and render yet another substantively incorrect decision; or to adjudicate under the persuasive mode. But equality, in this sense, can also play a role in the equitable dispensation of legal requirementsassuming, of course, that courts have the corresponding power. A Marmor, Should Like Cases Be Treated Alike? (2005) 11 Legal Theory 27, 29. cf Hart (n 10) 128; L Duarte dAlmeida, Allowing for Exceptions (OUP 2015) 184. Precedent is based on the principle known as the 'stare decisis' this means to stand by what has been decided. In relation to the civil law, see Merryman and Prez-Perdomo (n 17) 47; Peczenik (n 19) 461 and 4656. When it is clear, we can think of the case, at least in respect to subsumption, as an easy one. Be that as it may, nothing in Schauers work suggests that the reasons for having horizontal stare decisis cannot support vertical stare decisis as well. As one anonymous referee has correctly pointed out, many civil law countries have shown a tendency to depart from the classic civilian understanding of precedent to one where courts, at least in certain matters, are required to follow precedent. See eg D Lyons, Formal Justice and Judicial Precedent (1985) 38 Vand L Rev 495; F Schauer, Precedent (1987) 39 Stan L Rev 571, 595602; L Alexander, Constrained by Precedent (1989) 63 S Cal L Rev 1, 26 and 51; R Cross and JW Harris, Precedents in English Law (4th edn, Clarendon Press 1991) 1112; N Duxbury, The Nature and Authority of Precedent (CUP 2008), ch 5; L Alexander and E Sherwin, Demystifying Legal Reasoning (CUP 2008) 357; J Waldron, Stare Decisis and the Rule of Law: A Layered Approach (2012) 111 Mich L Rev 1, 31; N Varsava, How to Realize the Value of Stare Decisis: Options for Following Precedent (2018) 30 Yale JL & Human 62, 703. With respect to terminology, I will speak of the earlier court to refer to the court that decided a case in the past that is relevantly similar to the one being decided by the later court. Its normative effect is twofold: for the later court, a reason otherwise excluded is a non-excluded reason. Discussing Dworkins views on precedent, see also S Perry, Judicial Obligation, Precedent and the Common Law (1987) 7 OJLS 215, 2236. This is the second option the court has, and seems to be the option the legal system wants the court to adopt when the precedent cannot be distinguished. In F Schauer, Thinking Like a Lawyer (Harvard UP 2012) 412, Schauer claims that the justifications for precedential constraint [vertical stare decisis] are fairly obvious: lower court judges are expected to follow the instructions of those courts above them in what the military calls the chain of command. This means that, if the earlier court reached a decision that was initially justified, the later court is prevented from reaching a different decision without justification. These reasons might not outweigh all competing values, as some scholars have rightly noted,44 but, all else being equal, they do recommend a commitment to the rule of law. Madison Decision. The distinction between horizontal and vertical precedent does not play a crucial role in the valuable contributions of EM Wise, The Doctrine of Stare Decisis (1975) 21 Wayne L Rev 1043; Lyons (n 2); Alexander (n 2); G Lamond, Do Precedents Create Rules? (2005) 11 Legal Theory 1; J Horty, Rules and Reasons in the Theory of Precedent (2011) 17 Legal Theory 1; Varasa (n 2); Stevens (n 6). In section 3, I show the extent to which the null model fails to live up to the rule of law. Precedent is a legal principle developed by the courts and refers to the decisions made that will serve for the future. I am very grateful to Timothy Endicott, Katharina Stevens, Joseph Raz, Crescente Molina, Donald Bello, Joshua Pike, Hafsteinn Dan Kristjnsson, Benjamin Shoemaker, Nick Grant, Manuel Gonzlez, Michele Boggiani, Tom Kohavi, Gehan Gunatilleke, Mikolaj Barczentewicz, Li-kung Chen and two anonymous OJLS reviewers for comments on previous drafts of this article. Accordingly, the second claim is that we can identify two modes of precedential reasoning precisely by whether courts have a reason or an obligation to decide precedent-governed disputes by following precedent. An important consequence of precedents' practical authority is this: since courts are bound to apply the law, and since earlier decisions have practical authority over the content of the law (i.e., over what is the law), later courts are bound to follow the decisions of earlier cases. The reason is not because I reject substantive versions of the rule of lawa point we need not settle here. In these cases, commitments provide, as Ruth Chang writes, the grounds for new will-based reasons.67 Similarly, in virtue of a particular commitment, sometimes we see ourselves making decisions we would not otherwise make. Michael B. Kimberly is a partner at Mayer Brown LLP and co-director of the Yale Law School Supreme Court Clinic. A famous example of this disagreement can be found in Raz, The Authority of Law (n 12) 21011. For a somewhat sceptical analysis, in US law, of the arguments in favour of vertical stare decisis, see E Caminker, Why Must Inferior Courts Obey Superior Court Precedents? (1994) 46 Stan L Rev 817. Why Michigan Law? | University of Michigan Law School When, by contrast, such a court has an authoritative reason, the court can either follow or distinguish the precedent by acting on a non-excluded reason. Why is legal precedent important to the courts? The null model, however lawful, runs counter to the rule of law. In this situation, the precedent makes a normative difference, since the later court has to meet a justificatory burden for failing to conform to it. The possibility of the null model is valuable for two reasons. In sum, the null model can be lawful, and supported by various reasons, but there are important reasons as well for thinking that it fails to live up to the rule of law.
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