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A bit of background: The whole idea of Stare Decisis, or the Theory of Precedent, is that the jduge MUST look to past cases with similar/identical facts from a higher/equal court level in deciding the case. In other words, "let the former decision stand".
http://en.wikipedia.org/wiki/Common_law
My thought to you guys is this: Does this ingrain certain traditions or customs in society, that unnecessarily get transferred down with each iteration of the law? As life and society progresses and evolves, so do our values... and so should the laws that govern our lives. What's acceptable eons ago may not be looked upon in the same manner as today...
Of course, that's not to say that there is no "readjustment" in this regard, or deviation from precedent law. Good example: "In 1896 the US Supreme Court ruled that segregated public facilities was constitutional as long as they were equal. In 1956, the Supreme Court ruled that separate but equal facilities were inherently unequal and therefore unconstitutional. In 1956, if the Supreme Court had blindly followed the principle of stare decisis, it would have ruled that segregation was permissible."
But as you can imagine, the prevalent tendency is to lean toward a former, slightly outdated ruling.
Thoughts?
It helps make somethings more or less "settled" and lets us know how the courts are likely to rule in the future. there is some value in status quo.
ReplyDeleteI think each case should be mostly looked at from a new, fresh standpoint.
ReplyDeleteis very common in trials to "quote" older alike situations, example "in the alison vs williams case, the executed was declared guilty because of the same thing bla bla". if you want to understand it better, just start reading older trial archieves
ReplyDeleteI like it, nice!
ReplyDeleteIf you just focus on the outcomes of similar precedings it may be easy to overlook something of importance.
ReplyDeleteAwesome!This was actually interesting xD Thanks for the good read (:
ReplyDeleteVery interesting post. :D
ReplyDeletemis2pesos.blogspot.com
twitter.com/#!/my2pesos
Interesting! :) I wish i knew more about laws and stuff...
ReplyDeleteless laws more freedoms, screw securities and safety :D
ReplyDeleteMy husband is in law school right now and the term "common law" reminds me of all the study groups he has at our home. I've always wondered about the whole "precedent" thing and if we should allow/not allow something simply because of a decision in the past. Times change.
ReplyDeleteGood luck in class!
~ Angela
grahamandangela.blogspot.com
Personally, I disagree with the Stare Decisis thing. Then we're just too stuck in the past. Times change and laws therefore should too
ReplyDeleteCiting precedent is one a lawyers most important techniques in that it makes his our her own case appear stronger. But yeah just because a previous case was ruled a certain way doesn't make it necessarily right. It takes for society to change. Hence, shocking things are always "unprecedented"
ReplyDeleteIf you can't come to a decision then it would be good to see what happened before, but only in that case.
ReplyDeleteThe way the Law is is laughable at best. Instead of using common sense they use what passed for common sense a hundred years ago!
ReplyDeleteI took a law class in high school and I remember this one case, this guy killed his disabled son cause his son was in constant pain and could never cominicate with the world and was detained in house arrest for the trial. Since they didn't want him to go to jail for what he did (cause he had good reasons for doing it ie his sons constant pain) but they didn't want him to get off on the charge (cause then other parents may kill their disable kids who arn't in pain and can talk and point to this case as president) they dragged out his trial so once sentanced he had already done his time under house arrest.
The legal system does odd things to get around its odd rules.
Honestly as human beings we're supposed to learn from experience and adapt so I think we should let the past sculpt our opinions at least a little bit.
ReplyDeleteI suppose inconsistency would look weird coming from a court of law, but this also restricts good change. Being a progressive, I'm also not a big fan of strict constructionists. there seem to be pros and cons to the system and I'm not qualified to make that decision, but I'd go with a more liberal approach to decisions.
ReplyDeleteGreat post, i loved it :D
ReplyDeleteInteresting post. I was not aware of such a thing as common law, but rather thought it as English Common Law, i.e. Higher Law.+Followed
ReplyDeletenice post!
ReplyDeleteInteresting post. Our judicial system is not perfect, although better than most.
ReplyDeleteStare Decisis is useful because it keeps judges in check and prevents chaos. Like your example of Plessy v Ferguson which declared that separate but equal concept was fine. Through the years it was proven to be wrong. Case law through Brown v Board of Education found no equal separate school was available nearby, so lawsuit to permit white school entry was filed. An 8 year old took a school bus for miles to a black school, while passing several white schools in the process. Stare Decisis was upset here because of compelling proof to the contrary.
When you study Marbury v Madison it will be made clearer.
Interesting how the forms of laws change from country to country. Here in Brazil, the law does not work as Theory of Precedent. In the Civil Code can only hear cases that are provided there.
ReplyDeleteyeah it's a built in conservatism. but that's not necessarily a bad thing.
ReplyDeleteI can somewhat sympathize with the 'chaotic' axis, now.
ReplyDeleteI feel like I'm taking these courses with you. BTW...I made you new blog of the day.
ReplyDeleteWell if you can show that the previous decision is unlawful in some respect, then it can't stand any more, right? And as times change, so do laws.
ReplyDeleteI don't necessarily agree with it, but I can see why it's there.
(Also, typo: judge)
I don't think the system will ever be perfect, there need to be constant tweaks, if we always keep it the old way, since people 'didn't complain' (I'm sure they do) the complaints are going to get out of hand, I think it needs to be updated constantly to make everyone happier and more fair.
ReplyDeleteI think it's kind of stupid and lazy. Yeah it'll also save time, money and effort but I highly doubt that the cases will be similar enough to be able to give the same verdict.
ReplyDeleteBut I'm not a law student, I can't really say.
well we have a lot of knowledge about our world nowadays, and it's always progressing through technology, but we still need to catch up with wisdom.... good post :)
ReplyDeleteGreat post
ReplyDeleteThanks for visiting my place. And yes, I firmly believe that the law too needs to evolve, and that it does not do so fast enough. Thank you - a really thought provoking post.
ReplyDeletetQ for slipping by. Common Law for commoners like us? haha. Well Bananaz is ignoramus about laws could only stare at your 'Stare Decisis'. Very interesting post here about precedent if it needs readjustment for the better why not?
ReplyDeleteHi, thanks for popping over :)
ReplyDeleteReally interesting post, I've only delved into law to do with ACTS and regualations for various assignments.
I do think the world has moved on, evolved and changed and what was correct 100 or so years ago, may not make sense today. It depends how a new precedent is going to change things in the future and the consequences
given there are situations where stare decisis isnt applicable (the example being one of them) it is a good rule of thumb to not change the law wildly for no good reason I think.
ReplyDeletethis is something new to me. thanks for sharing your knowledge. have agood day!
ReplyDeleteAs -E- said, old laws are built on conservatism, which is more Puritanical. I guess it boils down to one's religious views.
ReplyDeleteI think it's great to have a framework that is somewhat timeless like the constitution. OTOH, mores change and laws need to change to reflect that like the whole gay marriage thing.
ReplyDeleteI'm sorry in advance. When it comes to law, I have no idea what I'm talking about. Precisely because I'm not that interested in government and politics. However, as a participant in an evolving community, I believe that there are things that should change with time. You are right when you say that laws that govern us should change with our values but the problem lies with "drawing the line". There should be boundaries placed so core laws that govern disciplinary actions stay intact but there should be ample space for development.
ReplyDeleteFascinating. I find it interesting to learn about the laws and legal system. Big fan of Latin too.
ReplyDeleteFuck me, I haven't got a clue. Mind you, I have ben drinking all day.
ReplyDeleteShamelessly posting a link to your blog on mine? Not cool man
ReplyDeletewell well... It could had been more complicated for a change.
ReplyDeleteShamelessly posting a link to your blog on mine? Not cool man
ReplyDeletetrue that
good blog tho
I'm following aswell
ReplyDeletegud post
ReplyDeleteThe forefathers were smart people. While it is not a perfect system, the constitution works pretty well as a baseline for law and order. Stare decisis seems necessary to me, in order to maintain consistency within the system, so long as it is constitutional. You are right though, that without checking a laws constitutionality, common law could cause some pretty bad laws to remain in effect.
ReplyDeleteInteresting Question im gonna be thinking about that for a while now, in my opinion though i think the laws should change to suit our times, its like with executions in ancient and medieval times it was done all the time though now in todays society we never execute anyone.
ReplyDeleteLots to think about.
ReplyDeleteVery interesting! Things not a whole lot of people stop to think about. Keep the info coming!
ReplyDeleteinteresting read thanks for sharing!
ReplyDeleteAn interesting article in this respect: http://www.constitution.org/col/0610staredrift.htm
ReplyDeleteY'know what the problem is when it comes to...well, hell, EVERYTHING? Especially the public sector, and even laws?
ReplyDeleteFlexibility.
What I mean to say is that there's SOME things out there that just shouldn't be touched...the Bill of Rights, the Constitution. Magna Carta, even. All three of these contribute greatly to a universally-acceptable ideal of freedom and how we can go about obtaining and protecting those freedoms.
It's everything AFTER that that becomes such a pain.
Now it's true that certain laws and traditions should be upheld, but if they don't hold under modern-day evaluation they should be changed or simply thrown out.
Dead weight SHOULD be culled, the moment it's evaluated as such. Otherwise there is nothing but suffering, shackled as they are by weighty chains that will never allow for forward movement.
...or maybe I'm wrong. There's always that chance, y'knowwhatImean?