Question

Give five reasons why a court may choose not to follow precedent.

Answer 1

When the judges don’t like the precedent, they can usually find a way around it. If it is an appellate court, one which issued the prior decision, they can always overturn that decision if they have good reason to. For example, Federal Courts of Appeals sometimes make rulings which affect millions of people in several states, and those rulings sometimes cause unexpected and unwanted consequences. The next time the same issue comes before the same court, they could “clarify” their prior ruling, or “distinguish” the new case from the old, or explicitly “overturn” the old case.

The doctrine of stare decisis, which suggests that Courts should, when feasible, uphold prior decisions, especially when people rely on the certainty of settled law, is not binding, but advisory. So if a court sees a real need to revisit and change its earlier decision, they can.

For lower courts, it can be a little trickier: they are required to obey the rulings of higher courts. Still, even municipal or magistrate courts which hear misdemeanors and city ordinance cases will sometimes try to get around a precedent they don’t agree with, especially if it would cause (in their not-so-humble opinion) an injustice. Since they don’t have the authority to simply disregard the prior decision, they have to express their decision in language which allows them to say that the case in front of them is sufficiently different from the prior case that the rule doesn’t apply. This is often a stretch, and is likely to be struck down if appealed, but very few people at this lower court level can afford the fees necessary to pursue an appeal.

At its root, however, disregard of precedent stems from a judge’s personal or political opinion that the prior decision is wrong.