5 - Why follow precedent?
Published online by Cambridge University Press: 24 January 2011
Summary
There are many reasons for not following precedents. Unswerving adherence to precedents might be indicative of a judge's lack of courage, maturity, initiative, industry or sound judgment. ‘The right course of decision is obvious to me’, a judge will sometimes say, ‘I need no case law to point me in the right direction’. The primary objective of the court which produced the precedent was to decide a dispute, not issue an edict which later courts can readily identify and accept; and so, even when a precedent is followed, the judges who follow it know that they must do much of the working out of principle for themselves. In some areas of law, the implicit understanding might well be that decision-makers do not simply seek a precedent. This is classically understood to be the case in US constitutional law, where the Supreme Court takes a more relaxed approach to stare decisis than do American courts when dealing with most non-constitutional matters; similarly, in US administrative law it is broadly recognized that an administrative agency should be free to consider a problem in its fullness, as it were, without being constrained by its own or another agency's prior handling of the matter. Sometimes it will be the case not only that precedents are not followed, but that there is no great expectation that they be followed.
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- The Nature and Authority of Precedent , pp. 150 - 183Publisher: Cambridge University PressPrint publication year: 2008