Editing Precedent (section)

==Practical application==
Although inferior courts are bound in theory by superior court precedent, in practice a judge may believe that justice requires an outcome at some variance with precedent, and may distinguish the facts of the individual case on reasoning that does not appear in the binding precedent. On appeal, the appellate court may either adopt the new reasoning, or reverse on the basis of precedent. On the other hand, if the losing party does not appeal (typically because of the cost of the appeal), the lower court decision may remain in effect, at least as to the individual parties.

===Judicial resistance===
Occasionally, lower court judges may explicitly state a personal disagreement with the rendered judgment, but are required to rule a particular way because of binding precedent.<ref>See, e.g., [https://scholar.google.com/scholar_case?case=1195909351234664885 ''State Oil Co. v. Khan''], 93 F.3d 1358 (7th Cir. 1996), in which Judge Richard Posner followed the applicable Supreme Court precedent, while harshly criticizing it, which led the Supreme Court to overrule that precedent in ''[[State Oil Co. v. Khan]]'', 522 U.S. 3 (1997); see also the concurring opinion of Chief Judge Walker in [https://scholar.google.com/scholar_case?case=1895782534423575000 ''National Abortion Federation v. Gonzalez''], 437 F. 3d 278 (2d Cir. 2006).</ref> Inferior courts cannot evade binding precedent of superior courts, but a court can depart from its own prior decisions.<ref>See, e.g., [http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=US&vol=502&invol=197 ''Hilton vs. Carolina Pub. Rys. Comm'n.''], 502 U.S. 197, 202, 112 S. Ct. 560, 565 (1991)("we will not depart from the doctrine of stare decisis without some compelling justification").</ref>

===Structural considerations===
In the United States, ''stare decisis'' can interact in counterintuitive ways with the federal and [[U.S. state|state]] court systems. On an issue of federal law, a state court is not bound by an interpretation of federal law at the district or circuit level, but is bound by an interpretation by the United States Supreme Court. On an interpretation of state law, whether [[Common law#Disambiguate statute|common law]] or [[statutory law]], the federal courts are bound by the interpretation of a state court of last resort, and are required normally to defer to the precedent of intermediate state courts as well.<ref>{{cite web|url=https://www.amacad.org/publication/supreme-court-21st-century|title=The Supreme Court in the 21st Century|website=American Academy of Arts & Sciences|date=March 2013 |language=en|access-date=7 June 2019}}</ref>

Courts may choose to obey precedent of international jurisdictions, but this is not an application of the doctrine of ''stare decisis'', because foreign decisions are not binding. Rather, a foreign decision that is obeyed on the basis of the soundness of its reasoning will be called ''[[persuasive authority]]''—indicating that its effect is limited to the persuasiveness of the reasons it provides.

===Originalism===
[[Originalism]] is an approach to interpretation of a legal text in which controlling weight is given to the intent of the original authors (at least the intent as inferred by a modern judge). In contrast, a non-originalist looks at other cues to meaning, including the current meaning of the words, the pattern and trend of other judicial decisions, changing context and improved scientific understanding, observation of practical outcomes and "what works", contemporary standards of justice, and ''stare decisis''. Both are directed at ''interpreting'' the text, not changing it—interpretation is the process of resolving ambiguity and choosing from among possible meanings, not changing the text.

The two approaches look at different sets of underlying facts that may or may not point in the same direction—''stare decisis'' gives most weight to the newest understanding of a legal text, while originalism gives most weight to the oldest. While they do not necessarily reach different results in every case, the two approaches are in direct tension. Originalists such as Justice [[Antonin Scalia]] argue that "''Stare decisis'' is not usually a doctrine used in [[civil law (legal system)|civil law]] systems, because it violates the principle that only the legislature may make law."<ref>''A Matter of Interpretation''.{{full citation needed|date=May 2020}}</ref> Justice Scalia argues that America is a civil law nation, not a [[Common law#Disambiguate civil law|common law]] nation. By principle, originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the originalist's own interpretation of the [[US Constitution|Constitutional]] text or inferences of original intent (even in situations where there is no original source statement of that original intent). However, there is still room within an originalist paradigm for ''stare decisis''; whenever the [[plain meaning rule|plain meaning]] of the text has alternative constructions, past precedent is generally considered a valid guide, with the qualifier being that it cannot change what the text actually says.

Originalists vary in the degree to which they defer to precedent. In his confirmation hearings, Justice [[Clarence Thomas]] answered a question from Senator [[Strom Thurmond]], qualifying his willingness to change precedent in this way:

{{Blockquote|I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case incorrect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case.|<ref>[[Clarence Thomas|Thomas, Clarence]] (1991). ''[U.S.] Senate Confirmation Hearings.'' qtd. by Jan Crawford Greenburg on [https://www.pbs.org/newshour/forum/june03/scotus_forum2.html PBS] (June 2003) Accessed 8 January 2007 UTC.</ref>}}

Possibly he has changed his mind, or there are a very large body of cases which merit "the additional step" of ignoring the doctrine; according to Scalia, "[[Clarence Thomas]] doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let's get it right."<ref>{{cite journal | author=Ringel, Jonathan | title= The Bombshell in the Clarence Thomas Biography | publisher=Fulton County Daily Report | year=2004 | url=http://www.law.com/jsp/article.jsp?id=1090180289132 | author-link=Jonathan Ringel }}</ref>

Caleb Nelson, a former clerk for Justice Thomas and law professor at the University of Virginia, has elaborated on the role of ''stare decisis'' in originalist jurisprudence:

{{Blockquote|American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision.&nbsp;... [T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedent that the current court deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter. But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law.&nbsp;... Americans from the Founding on believed that court decisions could help "liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to abide by such "liquidations".&nbsp;... To the extent that the underlying legal provision was determinate, however, courts were not thought to be similarly bound by precedent that misinterpreted it.&nbsp;... Of the Court's current members, Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions.&nbsp;... Prominent journalists and other commentators suggest that there is some contradiction between these Justices' mantra of "judicial restraint" and any systematic re-examination of precedent. But if one believes in the determinacy of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can also speak of fidelity to the texts themselves.<ref>{{cite journal |last=Nelson |first=Caleb |title=Stare Decisis and Demonstrably Erroneous Precedent |journal=Virginia Law Review |volume=87 |issue=1 |pages=1–84 | year=2001 | author-link=Caleb Nelson |doi=10.2307/1073894 |jstor=1073894 }}</ref>}}

===Criticism of precedent===

One of the most prominent critics of the development of legal precedent on a case-by-case basis as both overly reactive and unfairly retroactive was philosopher [[Jeremy Bentham]]. He famously attacked the common law as "dog law":
{{Blockquote|When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me.<ref name="Juratowitch">{{cite book |last1=Juratowitch |first1=Ben |title=Retroactivity and the Common Law |date=2008 |publisher=Hart Publishing |location=Oxford |isbn=9781847314109 |page=41 |url=https://books.google.com/books?id=2u3bBAAAQBAJ&pg=PA41 |access-date=29 September 2020}}</ref><ref name="Wacks">{{cite book |last1=Wacks |first1=Raymond |title=Understanding Jurisprudence: An Introduction to Legal Theory |date=2015 |publisher=Oxford University Press |location=Oxford |isbn=9780198723868 |page=74 |edition=4th |url=https://books.google.com/books?id=EiDZBQAAQBAJ&pg=PA74 |access-date=30 September 2020}}</ref>}}

In a 1997 book, attorney Michael Trotter blamed overreliance by American lawyers on precedent — especially persuasive authority of marginal relevance — rather than the merits of the case at hand, as a major factor behind the escalation of [[legal costs]] during the 20th century. He argued that courts should ban the citation of persuasive authority from outside their jurisdiction and force lawyers and parties to argue only from binding precedent, subject to two exceptions:

# cases where the foreign jurisdiction's law is the subject of the case, or
# instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a countervailing trend in other jurisdictions.<ref>{{cite book |first=Michael H. |last=Trotter |title=Profit and the Practice of Law: What's Happened to the Legal Profession |location=Athens, GA |publisher=University of Georgia Press |year=1997 |pages=161–163 |isbn=0-8203-1875-2 }}</ref>

The disadvantages of ''stare decisis'' include its rigidity, the complexity of learning law, the fact that differences between certain cases may be very small and thereby appear illogical and arbitrary, and the slow growth or incremental changes to the law that are in need of major overhaul.{{citation needed|date=September 2021}}

An argument often leveled against precedent is that it is [[democracy|undemocratic]] because it allows judges, who may or may not be elected, to make law.<ref>{{cite journal |last=McClellan |first=James |title=The Doctrine of Judicial Democracy |journal=Modern Age |location=Chicago |volume=14 |issue=1 |year=1969 |pages=19–35 |url=https://isistatic.org/journal-archive/ma/14_01/mcclellan.pdf |archive-date=1 March 2017 |archive-url=https://web.archive.org/web/20170301092855/https://isistatic.org/journal-archive/ma/14_01/mcclellan.pdf }}</ref>

===Agreement with precedent===

A counter-argument (in favor of the advantages of ''stare decisis'') is that if the [[legislature]] wishes to alter the case law (other than constitutional interpretations) by [[statute]], the legislature is empowered to do so.<ref>{{cite journal |last=Berland |first=David |url=https://illinoislawreview.org/wp-content/ilr-content/articles/2011/2/Berland.pdf |title=Stopping the Pendulum: Why Stare Decisis Should Constrain the Court from Further Modification of the Search Incident to Arrest Exception |journal=University of Illinois Law Review |year=2011 |volume=2011 |pages=695–740 }}</ref> Critics{{who|date=April 2014}} sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedent that the judge supported anyway, but ignoring it in order to change precedent with which the judge disagreed<ref>{{cite web|url=https://www.open.edu/openlearn/society-politics-law/law/legal-skills-and-debates-scotland/content-section-overview|title=Legal skills and debates in Scotland|website=OpenLearn|language=en|access-date=7 June 2019}}</ref>

There is much discussion about the virtue of using ''stare decisis''. Supporters of the system, such as [[Minimalism (Judicial)|minimalists]], argue that obeying precedent makes decisions "predictable". For example, a business person can be reasonably assured of predicting a decision where the facts of his or her case are sufficiently similar to a case decided previously. This parallels the arguments against retroactive (ex post facto) laws banned by the U.S. Constitution .