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
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