Janus-faced doctrine of
Precedent

Ties law to past
 Upholds tradition and makes change
difficult
 Law as mechanism of social change is
complicated by mandate of “following
precedent”
 Change occurs through slow process of
doctrinal evolution
PRECEDENT: What is it?

Stare Decisis
 Applied in Appellate cases
– Like cases decided in like manner
– Judges must follow past decisions
– Lawyers must cite and account for good and
bad past decisions
Precedent is “double-sided”
One “side”–process that capitalizes on past
cases that support conclusion you want to
advocate
 Other “side”-process that helps to deemphasize or ignore past cases whose
rulings stand in the way of your argument
 Both good and bad precedents must be
raised and explained

With “good” precedents, you
would want to….

Emphasize legal ruling by judge in past case
 De-emphasize the facts of past case
 Explain how this case-legally is like past
ones
With “bad” precedents, you
would want to….

Emphasize the facts of past case
 Emphasize the differences between this
situation and past ones
 Explain why law articulated in past cases
should not apply here
Precedent implies that…

Judges evaluate past cases and make
objective decisions
 Judges are “Neutral”
 Law is a “scientific/rational” process
But….

Law is contextual
 There is subjectivity in judicial reasoning
 Many non-objective factors affect outcomes
 Such as
–
–
–
–
Quality of lawyers
Class, race, gender, nationality of parties
Nature of crime
Geographical and cultural context
State v. Pendergrass

Citation-2 Dev. &B., N.C. 365 (1837)
 Facts
 Issue
 Ruling
 Reason
Joyner v. Joyner

1862
 Judge Pearson
 Divorce case

Issue-whether the fact
of husband’s
“whipping” in and of
itself are grounds for
divorce
 Answer-no
 Because-wife must be
subject to husbanddoctrine of Coverture
State v. Black

1864
 Judge Pearson
 Criminal case

Law will not invade
the domestic curtain
unless permanent
injury or excess of
violence
 Why-pro bon publico
 What precedent did it
uphold? What did it
modify? What did it
overrule?
State v. Rhodes

1868
 Judge Reade
 Assault and Batterycriminal
 Only the fact that this
is battery between
husband and wife
makes it non
actionable





Careful review of
precedent
Issue-is this valid
Ruling-no battery
Reason-hands of policyautonomy of family
government where
“trifling” violence
Opened the door to new
rulings
State v. Mabrey

1870
 Judge Reade
 Detailed presentation
of facts-criminal case
 Upheld past doctrine

Distinguished case by
claiming that the facts
are “savage and
outrageous”
 Not a case of trifling
family violence
State v. Oliver

1874
 Judge Settle
 Overruled old law that
husband has right to
whip his wife
 Repudiation of
doctrine of coverture

Upheld precedent that
courts will not invade
domestic curtain in
trivial case
 Case by case approach