When should judges not follow judicial precedent?

Question

Where do I find legal cases to support this>

Answer 1

When the precedent is clearly unconstitutional, regardless of what some other judge(s) say.

Roe v Wade.

Answer 2

Well, obviously when it is non-binding, such as from a court in a different jurisdiction, the local court is not required to follow it.

Or if the laws (statutes) that the precedent are based on have changed since that particular case. Those are the easy examples...

Other common examples include when the facts are sufficiently different from the facts in the precedent case, so that the same interpretation would not apply. This is called distinguishing the new case from the older one, or refusing to extend the older case holding to cover the new (different) facts.

The tricky situation is where the old case is on point (same factual situation), but where the end result is no longer appropriate given the changes in social context. For example, racial segregation ("separate but equal") was held as valid for decades after the 14th Amendment was enacted. Until eventually the court ruled that separate but equal is not valid, and ordered de-segregation. That's one example of a social/cultural change, where the previous law was overturned. There are other examples.

The important point is to distinguish between judicial precedent that is not binding because it is legally obsolete (different underlying law) or from a different jurisdiction, versus prior holdings which are from same court and are being upheld only out of respect for the prior decision, versus prior holdings which are from a higher court within the hierarchy and must be followed.

Answer 3

Hi, Hope the studies are going well and you are enjuying the course. Some excellent answers already, however you need to think about WHAT is being asked of you and you need some examples. What is the role of the judge? He is there to implement and interpret the law, the will of parliament as is. The issue here is what happens when it is recognised as bad law? Take the example of Caldwell recklessness, this was overturned in R v G and Another [2003]. (Sorry, I don't know the full citation.) This is where two boys set fire to some boxes, the fire spread causing £1 million worth of damage. The case for criminal damage the prosecution brought rested on the ruling in Caldwell. Their Lordships said no because of the age of the children. The court ruled that the youngsters could not reasonably be expected to forsee the consequences of their actions and overruled the Caldwell precedent. One should be mindful that sometimes, judge made law is helpful to over rule bad law, it is a matter of waiting for the right case to come up. R v G and Another is a classic example. Hope this helps and gives some food for thought. Merry Xmas

Answer 4

If the precedent is ambivalent, or there is another statute law which allows the room for interpretation in a different way, or if there are two precedents contradicting each other, from different superior courts, in such cases judges are at liberty to follow their own discretion.

Answer 5

They should not follow legal precedent when the circumstances warrant it.

Answer 6

Well, they should START now. Good Lord, I've never run across so many people in jail that have the same crimes, first time offenders, with VARIOUSLY different sentences.

Depending on your lawyer, your social background, your economical background, certainly plays a determinig role in the game.

Answer 7

study law from the supreme courts

Answer 8

because each case is different

Answer 9

They should always follow...unless God was standing there.