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13 - Overruling

Published online by Cambridge University Press:  22 September 2022

Melvin A. Eisenberg
Affiliation:
University of California, Berkeley
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Summary

Overruling occurs when a court overturns – abolishes – a rule established in a binding precedent. Overruling may be explicit or implicit. Explicit overruling occurs when a court explicitly abolishes a rule established by precedents in its jurisdiction and replaces it with the opposite rule. If a rule established in a precedent qualifies for overruling, normally a court will explicitly overrule it. In some cases, however, instead of explicitly overruling the rule, a court implicitly overrules it by the process of transformation, in which a court purports to follow a rule while actually undoing it.

Overruling is guided by a principle that is implicit in the case law. Under this principle a common law rule should be overruled if it is substantially incongruent with social morality, social policy, and experience; if it is inconsistent with other, sound rules; if it has been riddled with inconsistent distinctions; or if it is manifestly inequitable and unjust; and if the value of overruling the rule in question exceeds the value of retaining it.

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Legal Reasoning , pp. 98 - 110
Publisher: Cambridge University Press
Print publication year: 2022

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  • Overruling
  • Melvin A. Eisenberg, University of California, Berkeley
  • Book: Legal Reasoning
  • Online publication: 22 September 2022
  • Chapter DOI: https://doi.org/10.1017/9781009162517.014
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  • Overruling
  • Melvin A. Eisenberg, University of California, Berkeley
  • Book: Legal Reasoning
  • Online publication: 22 September 2022
  • Chapter DOI: https://doi.org/10.1017/9781009162517.014
Available formats
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Save book to Google Drive

To save content items to your account, please confirm that you agree to abide by our usage policies. If this is the first time you use this feature, you will be asked to authorise Cambridge Core to connect with your account. Find out more about saving content to Google Drive.

  • Overruling
  • Melvin A. Eisenberg, University of California, Berkeley
  • Book: Legal Reasoning
  • Online publication: 22 September 2022
  • Chapter DOI: https://doi.org/10.1017/9781009162517.014
Available formats
×