PRECEDENTPRECEDENT

Stare DecisisApplied in Appellate cases

– Like cases decided in like manner– Judges must follow past decisions– Lawyers must cite and account for good and

bad past decisions– How is this done?

Past cases that support Past cases that support

Emphasize legal ruling by judge in past case

De-emphasize the facts of past caseExplain how this case-legally is like past

ones

Past cases that do not supportPast cases that do not support

Emphasize the facts of past caseEmphasize the differences between this

situation and past onesExplain why law articulated in past cases

should not apply here

Janus-faced doctrine of Janus-faced doctrine of Precedent-(contradictory Precedent-(contradictory

doctrine)doctrine)Ties law to pastUpholds tradition and makes change

difficultLaw as mechanism of social changeThrough slow process of doctrinal evolution

Precedent implies that…Precedent implies that…

Judges evaluate past cases and make objective decisions

NeutralityScientific/rational approach to decision-

making

But….But….

Law is contextualThere is subjectivity in judicial reasoningQuality of lawyers affects outcomes

State v. PendergrassState v. Pendergrass

Citation-2 Dev. &B., N.C. 365 (1837)FactsIssueRulingReason

Joyner v. JoynerJoyner v. Joyner

1862 Judge Pearson Divorce case

Issue-whether the fact of husband’s “whipping” in and of itself are grounds for divorce

Answer-no Because-wife must be

subject to husband-doctrine of Coverture

State v. BlackState v. Black

1864 Judge Pearson Criminal case

Law will not invade the domestic curtain unless permanent injury or excess of violence

Why-pro bon publico What precedent did it

uphold? What did it modify? What did it overrule?

State v. RhodesState v. Rhodes

1868 Judge Reade Assault and Battery-

criminal Only the fact that this

is battery between husband and wife makes it non actionable

Careful review of precedent

Issue-is this valid Ruling-no battery Reason-hands of policy-

autonomy of family government where “trifling” violence

Opened the door to new rulings

State v. MabreyState v. Mabrey

1870 Judge Reade Detailed presentation

of facts-criminal case Upheld past doctrine

Distinguished case by claiming that the facts are “savage and outrageous”

Not a case of trifling family violence

State v. OliverState v. Oliver

1874 Judge Settle Overruled old law that

husband has right to whip his wife

Repudiation of doctrine of coverture

Upheld precedent that courts will not invade domestic curtain in trivial case

Case by case approach

Precedent-is both…..Precedent-is both…..

Barrier to change

Stare decisis– Follows past rulings

Tradition bound/past oriented

Change agent

Distinguishes past case

Modifies and overrules past holdings

TodayToday

What remnants of this precedent is left?Reluctance of courts to regulate family

violenceLegitimacy of notion of parental discipline

and right to punishIdea of family privacy vs. State intervention