Why are precedents important in case law

The value of a common law system is that the law can be adapted to situations that were not contemplated by the legislature.

There are two disadvantages. First, judges must follow the precedent cases. If they do not, then it is impossible to predict what the law is. The second is that with hundreds of cases being decided every day, it is hard to keep up with the relevant decision. It is not unusual for several courts to be deciding cases on the same subject at the same time, with no good way to coordinate their opinions.

Frequently the courts will reach different conclusions about the law. The state court in San Francisco might ban the use of Zoneout in the workplace, but the court in Los Angeles might allow it.

Until the California Supreme Court resolves the issue, medical care providers in the two different regions are facing different laws. This type of split also happens between federal courts of appeal, sometimes with three or four parts of the country under different interpretations of a given federal law.

The alternative to the common law system is called a civil law system. In a civil law country, the legislatures pass very specific statutes, and these are applied by the courts. The doctrine of stare decisis does not wholly isolate precedents from review. Congressional action by statute may overturn judicial decisions on statutory issues, and constitutional amendments may overturn judicial decisions on constitutional issues. Remedial legislative action is frequently not required, however, because the judiciary may overturn its own decisions when certain conditions are met.

Below, Part II discusses how precedents can lose their binding effect through judicial action and explores principles that guide remedial judicial action set forth by the Supreme Court.

In the federal system, the Supreme Court may overturn its own precedent. Factors particularly relevant to this assessment include a workability, b reliance, c abandonment, and d legitimacy. In Payne v. Tennessee , the Court overturned two precedents— Booth v. Maryland [26] and South Carolina v. Gathers [27] —to hold that the Eighth Amendment did not prohibit a capital sentencing jury from considering victim impact evidence.

Planned Parenthood , the Supreme Court declined to overturn Roe v. The Supreme Court has never clarified the exact weight to give to the workability factor or how to balance workability against other competing considerations. In Roper v. Simmons , for example, the Court held that the Eighth Amendment prohibited the death penalty for minors, [33] overturning the contrary precedent of Stanford v.

Courts also consider reliance interests in deciding whether to overturn a precedent. United States , [38] the Court also alluded to reliance interests in declining to overrule Miranda v. The weight of reliance interests was a significant point of contention in Lawrence v. Texas , [42] where the Court overturned Bowers v.

Hardwick [43] to hold that the Constitution protected the right to intimate homosexual conduct. Indeed, there has been no individual or societal reliance on Bowers of the sort that could counsel against overturning its holding once there are compelling reasons to do so. Like the workability inquiry, the Court has not given the reliance inquiry any preassigned weight in a stare decisis analysis. Department of Revenue of Illinois , [49] a precedent prohibiting a state from imposing a sales tax collection duty on a mail-order reseller if the seller lacks a physical presence within the state.

Legitimacy concerns form a fourth relevant consideration in a stare decisis analysis. The Court has stated that legitimacy concerns are especially pressing when the Court analyzes the precedential power of a landmark case on a publicly divisive issue.

Principles for overturning precedent have evolved significantly from the time of the early judiciary. Before dealing with the effects of precedent in detail, Jacob tackles the question of whether the CJEU is limited to applying law or whether the court can actually make law. With regard to this question he rightly rejects any exclusive or extreme position and opts for a middle ground.

At the other end of the theoretical spectrum, Jacob identifies various pragmatic approaches which acknowledge that judges do more than simply apply the law, such as decisionism, legal realism, or theories close to or inspired by political science. While such a conceptualization is, of course, exemplary and rather simplistic, it nevertheless allows the author to carve out the fundamental lines of legal thinking, their advantages, disadvantages, and shortcomings. Such a broad conception of law and legal pronouncements, however, comes with the inherent danger of dissolving normativity into diffuse forms of legal information.

After all, if anything qualifies as legal information, what is the difference between legislative acts, judicial precedents, and academic pronouncements on legal questions?

While Jacob does not deny the differences between those types of legal information, distinguishes legislation from adjudication, and rightly points out the complementary nature of legislation and adjudication in establishing the content of law, those differences remain rather vague and under-analyzed. Jacob shows that the CJEU not only makes reference to precedents in different ways, but also employs them within different functional contexts, for example, in order to state the law, to interpret a specific provision, or to justify an interpretation it has already arrived at on the basis of substantive reasoning.

Accordingly, close attention has to be paid to the specific manner and function of precedent use by the court. Jacob convincingly argues that the way in which the court employs precedent is not so much determined by a specific methodological or theoretical conviction about precedent, but rather depends on the specific context in which the court decides a case.

Turning to avoidance techniques, Jacob deals with the well-established concepts of distinguishing and departing. Again, his analysis reveals that the court employs these techniques in different ways and with a high degree of flexibility.

In general, the analysis shows how the court regularly shies away from openly overruling itself and departing from precedents and instead resorts to different techniques of distinguishing, thereby at times implicitly modifying or even overruling precedents without explicit acknowledgment.

Jacob shows in detail how distinguishing can take on different forms and can have different repercussions on the precedent: subsequent distinguishing can leave the precedent intact, can modify it, or can even implicitly overrule the precedent. Jacob convincingly argues that the striving for coherence or the pretense of coherence alone cannot justify the problematic and non-transparent approach of the court. The exploration of possible grounds for departing from a precedent is also very insightful.

Drawing upon jurisprudence of the Supreme Courts of the United States and the United Kingdom, the author distinguishes different reasons for overruling and analyzes their operation in practice.

Most interesting from a theoretical per spective is the chapter on the normativity of CJEU precedents. Jacob rightly refuses to deduce far-reaching consequences from the juxtaposition of common law versus civil law thinking. Without denying the differences between the two archetypes, he subscribes to a modest version of the convergence thesis, pointing out that legal practice in both systems reflects a normative understanding of the effects of precedent: precedents entail at least an argumentative burden that prevents courts from ignoring or departing from established case law without any substantive reasoning.

Jacob also rightly refuses to limit the normativity of law to the concept of binding effect. Focusing on the lack of binding effect or on the absence of any strong doctrine of stare decisis in EU law simply misses the point.

Drawing from domestic legal systems as well as from the use of precedent in international law, Jacob unfolds his thesis on the basis of a detailed and thorough analysis of the understanding of precedent in EU law as it is reflected in the jurisprudence of the CJEU and in the opinions of the advocates-general.

While there is no binding precedent in EU law, precedents nonetheless entail a normative effect. The question of whether and how other actors of EU law—in particular the political organs of the EU, domestic courts, or the member states—are obliged to take the precedents of the CJEU into consideration when applying EU law, is treated only marginally, and again only from the perspective of the CJEU, in particular with regard to the jurisprudence of the Court in the CILFIT case.

A comprehensive picture of the working of precedent in EU law would therefore require an analysis not only of how the CJEU deals with its case law, but also of the way in which the courts of the member states approach the law made in Luxembourg.