An analysis of the judicial doctrine, "stare decisis".
Written in 2004; 3,787 words; 7 sources; MLA; $ 104.95
Paper Summary:
This paper explains the judicial doctrine, "stare decisis", from the Latin meaning 'to stand by that which is decided', which provides that precedent decisions are to be followed by the courts. The paper states that the doctrine of "stare decisis" has developed in common-law legal systems, which enable judges to create law through judicial interpretation. The paper explains that, in contrast, jurisdictions with a civil-law legal system reject the doctrine of "stare decisis", because civil-law systems require a stricter separation between the legislative and judicial branches. The paper claims that the United States' legal system developed from a common-law base and embraces the doctrine of "stare decisis".
From the Paper:
"Although the doctrine of stare decisis appears, at first blush, to give great power to the judicial branch, it is actually a judicial discretion constraining device. If the legislature is unhappy with a high court's interpretation of a law, it can change the law to reflect the actual legislative intent. However, if the legislature is content with a high court's interpretation of a law, it can permit the law to stand as written, knowing that all lower courts are bound by the high court's interpretation. The most well-known example of the ramifications of the doctrine of stare decisis being applied to a U.S. Supreme Court decision may be with the case of Roe v. Wade and the issue of abortion rights. Although many states had outlawed abortion at the time of the decision and have attempted to criminalize it since that time, unless or until the decision in Roe v. Wade is completely overruled, states will be unable to criminalize early-term abortions. The Roe V. Wade decision is a prime example of how stare decisis constrains judicial discretion because other judges may disagree with the Roe court's decision that a woman's right to privacy governs the issue of abortion."
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