As Colin Starger has pointed out, the contemporary rule of stare decisis, derived from Brandeis` innovative dissent in Burnet, then split into strong and weak notions following the disagreement between Chief Justice William Rehnquist and Associate Justice Thurgood Marshall in Payne v. Tennessee (1991). [39] Strong design requires “special justification” to prevail over contested precedents beyond the fact that precedent was “ill-decided,” while weak design states that a precedent may be overturned if it suffers from “bad reasoning.” [39] The concept of super-stare decisis (or “super-precedent”) was mentioned during the hearings of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Before Roberts` hearings began, committee chairman Sen. Arlen Specter of Pennsylvania wrote an op-ed in the New York Times calling Roe a “super-precedent.” He repeated this concept during the hearings, but neither Roberts nor Alito approved of the term or concept. [21] In contrast, civil law systems follow a legal positivism in which previous decisions generally do not have the binding and previous effect they have in common law decision-making; A notable exception is judicial review by constitutional courts. An argument often made against precedent is that it is undemocratic because it allows judges, who may or may not be elected, to legislate. [57] Courts may choose to obey precedents of international jurisdiction, but this is not an application of the doctrine of stare decisis, as foreign judgments are not binding. Rather, a foreign judgment that is obeyed on the basis of the validity of its reasoning is called a persuasive authority – indicating that its effect is limited to the persuasive nature of the reasons it provides.
Stare decisis is generally not a doctrine used in civil law systems because it violates the legislative-positivist principle that only the legislature can legislate. Instead, the civil law system is based on the doctrine of consistent jurisprudence, according to which previous decisions are very convincing but not legally decisive if a court has decided a coherent line of cases that result in the same participations with sound reasoning. This doctrine is similar to stare decisis in that it requires that a court`s decision tolerate a consistent and predictable outcome. Theoretically, lower courts are generally not bound by higher court precedents. In practice, the requirement of foreseeability means that lower courts generally submit to the precedent of higher courts. As a result, the precedent is recognized by courts of last instance such as the French Court of Cassation and the Council of State as de facto binding on lower courts. Stare decisis reduces the number and scope of legal issues that the court must resolve in a dispute. It is therefore a time saver for judges and litigants.
Once a court clarifies a particular point of law, it has set a precedent. Thanks to stare decisis, claims can be rejected quickly and efficiently, as disputes can be resolved using rules and principles that have been established previously. Stare decisis can therefore encourage parties to settle cases amicably, thereby increasing the efficiency of the judicial system. [30] Any court may attempt to distinguish its present case from that of an enforceable precedent in order to reach a different conclusion. The validity of such a distinction may or may not be recognized on appeal. An appellate court may also propose an entirely new and different analysis from that of the lower courts and may or may not be bound by its own previous decisions or, in any event, it may distinguish those decisions on the basis of significant differences in the facts applicable in each case. Or a court may view the case before it as a “first impression” that is not subject to precedent. [7] In general, the higher courts do not exercise direct control over proceedings before the lower courts, as they cannot at any time, on their own initiative (sua sponte), appeal or annul the decisions of the lower courts. Normally, litigants are responsible for challenging judgments (including those that clearly violate applicable case law) in higher courts. If a judge acts against a precedent and the case is not contested, the decision will stand.
U.S. courts of last resort recognize a rebuttable presumption against the annulment of their own prior decisions. In earlier eras, it has often been argued that this presumption does not apply if the current members of the Court believe that the previous decision was manifestly erroneous. But when the Supreme Court makes similar noises today, it is outright criticized. At least within the academy, conventional wisdom now claims that an alleged demonstration of errors is not sufficient to justify an earlier decision. [T]he conventional wisdom is wrong to suggest that any consistent doctrine of stare decisis must include a presumption against precedent-setting that the present Court clearly considers to be false. In fact, the doctrine of stare decisis would not be a doctrine at all if courts were free to overturn a previous decision simply because they arrived at a different decision than an original question. However, when a court asserts that an earlier decision is manifestly erroneous, it is not only saying that it would have rendered a different decision than 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 all along that court decisions could help “liquidate” or clarify the meaning of ambiguous provisions of written law. Subsequent courts should generally confine themselves to these “liquidations”. However, to the extent that the underlying legal provision is specified, it has not been assumed that the courts were also bound by precedents that they had misinterpreted.
Among the current members of the Court, Justices Scalia and Thomas seem to have the greatest confidence in the accuracy of the legal texts submitted to the Court. Not surprisingly, they also seem the most willing to overturn the Court`s previous decisions. Prominent journalists and other commentators point out that there is a certain contradiction between the mantra of “judicial restraint” of these judges and a systematic examination of precedents. However, if one believes in the certainty of the underlying legal texts, one must define “judicial deference” not only in terms of precedent; We can also speak of fidelity to the texts themselves. The mixed systems of the Nordic countries are sometimes considered a branch of civil law, but they are sometimes considered distinct from the civil law tradition. In Sweden, for example, jurisdiction may play a more important role than in some continental civil justice systems. The two highest courts, the Supreme Court (Högsta domstolen) and the Supreme Administrative Court (Högsta förvaltningsdomstolen), have the right to set precedents with persuasive powers for any future application of the law.