Good Essay On Judicial Precedent:

Type of paper: Essay

Topic: Law, Supreme Court, Court, Criminal Justice, Precedent, Crime, Verdict, Judges

Pages: 8

Words: 2200

Published: 2020/09/23

The Nature of Legal Decision-Making

Executive Summary
This paper will scrutinize the doctrine of judicial precedent and its dependence on the hierarchy of the courts, the written records of cases and the approach of the judges. It will also comprehensively assess the relative importance of these three elements in the current judicial precedence. There will be in-depth discussion on the association between the three criterion and the final impact on the judicial decision making.


Notwithstanding the violation of lawmaking on materials that used to lie inside the sphere of the communal regulation, significant capacity orts for the judicial tradition of trailing precedent, exclusive of defying the power of inscribed decree. For verdicts essentially be decreed where lawmaking has not yet arbitrated, and understandings of inscribed decree can be rendered precedential power. In legal encounters and cases, it is similar to real life; participants are continuously observing for ways by which judgments are made in order to decide differences. Choices are gritty by the situations of a specific case, and so it is unreasonable to set out a comprehensive list of ways to choose. Though, in utmost contemporary civilizations, the lawful provisions are considered with one precise policymaking choice in attention: determining the foundation of what was done when the similar complication had to be fixed in the past. This is decisive rendering to precedent as a previous experience or decision that assists as a director for current action. This is the intention why law is alleged as fronting backward. What factors influence the precedents of judicial courts? Are judicial decisions under the influence of any past aspects? Verdicts in judicial courts are innocuous on their qualities and the exercise it follows is comparatively uncomplicated. “It may, possibly, be vindicated by the typical reason that it makes judicial decisions more foreseeable. That explanation barely appears, though, to challenge the fact that precedents may have been unsuccessful, imprudent, and unmerited” (Lyons). The aim most frequently known for the exercise of precedent is that it raises the predictableness of judicial verdicts. As an effect, it rises safety, diminishes risks that may otherwise deject valuable endeavors, and commonly evades trying anticipations. Therefore it is of immense prominence in the to signify the importance of some factors in the Judicial Precedent.

Hierarchy in Courts and Judicial Precedent

Judicial systems are intricate and diverse establishments. “Contemplate for instance a simple explanation of the federal judicial system in the United States. It comprises of district courts, on several of which more than one judge supervises. These district courts are organized in twelve circuits” (Kornhauser). A plaintiff displeased with the verdict of the district court can plea to a board of three judges wan from the appellate court of the circuit in which the district court assembles. The Supreme Court perceives pleas and supplications from the twelve circuit courts of petition. These courts are connected not only by this statutorily distinct grading but also by convoluted exercises of jurisdictive logic.

Vertical Precedent

In examining the notion of judicial precedent, it is of paramount significant to comment that there are two distinctive ways in which the requirement to trail precedent rises in the legal structure. Amongst these two one is named vertical precedent. “Lower courts are generally anticipated to follow the former verdicts of higher courts within their dominion, and this association of lower to higher in the “chain of command” is practically assumed as vertical” (Amar). Federal district courts are assisted to obey the practices of the courts of petitions of their circuit, and the courts of petitions are indebted to obey the practices of the Supreme Court. The similar situation is present in a state administrations, which archetypally have a comparable arrangement and enforce equal requirements. “Certainly, we signify to courts as superior and subordinate specifically because higher courts practice influence over subordinate ones, a power displayed predominantly in the requirement of subordinate courts to consider the verdicts of higher courts as obligatory upon them” (Schauer).

Horizontal Precedent

Moreover, along with being indebted to respect the verdicts of courts over them in the judicial hierarchy, courts are also, though lesser obvious stance and occasionally more contentiously, anticipated obeying their own previous verdicts. In such a case the link is horizontal, as the compulsion is amongst same court now, with the only difference being the time zone; past and present. This hierarchy is referred to as Horizontal Precedent. Horizontal precedent is therefore not a problem of superior or subordinate courts, but somewhat a mock or obligatory order from former decisions to future ones. The former verdict is higher not since it comes from a superior court, but due to the fact that the formerly verdict turn out to be grander just as it is prior. “This requirement of a court to obey its own earlier verdicts is stereotypically recognized as stare decisi. This particular term is originated from a Latin that means that “stand by the thing decided” and it is a dissimilar form of restriction by precedent. Below the principle of stare decisis, a court is accepted to resolve matters in the similar way that it has resolved them earlier, even if the affiliation of the court has changed, or even if the same associates have altered their thoughts”(Murphy). Similar to vertical precedent, stare decisis (horizontal precedent) is concerning ensuing the verdicts of others. However, both vertical and horizontal precedents comprise of obeying the verdicts of colleagues, no matter if they are superior, subordinate or even from the same level. The dissimilarity amongst a court’s obeying the judgment of a superior court and it also emphasis on the fact that it is of extreme significance to its own previous decisions is significant enough in several circumstances to be worth stressing even previously we see just what the compulsion to obey involves, and before we scrutinize the difficulties that are convoluted when these compulsions rise in real practice.

The Judicial Approach

The judicial approach in determining cases also substantiates to be a significant component in the theory as well as practice of the principle of judicial precedent. In this respect, the precedential requirement on a judge is a critical feature in each and every case. Accepting the notion of precedent necessitates the requirement of the attainment of knowledge of disparity between learning from the history as well as respecting the history just since of the circumstance of a past verdict, on the other. In accordance to the earlier, which is not actually precedential analysis at all, the immediate court may ascertain from a former case, or be influenced by certain verdict in the preceding, but the judgment to do what alternative court has done on an previous circumstance is not founded on the preceding case’s position as a example. “In its place the judgment demonstrates the essential individual aptitude to learn from others and from the past. There are many occurrences in which the immediate court will be influenced by the perceptive of another court, but if the immediate court is honestly influenced, then it can be trusted that that court is obeying precedent as it should be” (Ely). Courts sometimes assume that the previous decision made by the earlier judges on similar cases is of a standard rule. Therefore they unwillingly give out the similar verdict, by being under the deniable influence of the approach of other judges on similar situation. “When Ronald Reagan ran for president in 1980, he concentrated his electioneer, different earlier Republican candidates, on matters likely to appeal Democratic union members and southern Democrats, and he took points constant with the inclinations of those groups” (Carp). The approach was effective and consequently embraced by other Republican political contenders. However these other contenders trailed Reagan’s approach not since Reagan had used it, but since Reagan’s accomplishment had persuaded them that it was the correct approach. Similarly precedent forces courts, they are indulged to follow a precedent not only when they think it accurate, but even when they think it inappropriate. It is the precedent’s foundation or rank that gives it power, neither the reliability of its rational nor the creed of the immediate court that its result was precise. “When it is reasoned, for example, that even those Supreme Court Justices who consider Roe v. Wade to have been incorrectly resolved should nonetheless obey it in succeeding cases, the disagreement is not (or not only) that those Judges should alter their thoughts about Roe v. Wade” (Ely). Relatively, the disagreement is that those Judges should respect the verdict given in the case of Roe v. Wade even if they resume to contemplate that it was resolved erroneously.

The Written Records of Cases

It is sometimes presumed to be in the nature of a precedent that it must be comprehensible to those who might be controlled by it. However it is probable that a pattern may employ to our state even though it is unimaginable that we would have exposed its presence before it was discovered by us. “It is a definitely conventional rule of clarification’, C. K. Allen wrote in 1925, ‘that the Court may take its precedents from any understandable informant whatsoever – papers, manuscripts, past documents, and occasionally just the reminiscence of judiciaries of cases which they have listened to or read about somewhere” (Bingham). If a magistrate created law it should at least to be methodically described, for, exclusive of such recording, the communal law cannot be simply recognized and it may be arduous if not unmanageable to disclose if a court is trusting on precedent or generating a new umbrage. However, even once methodical reportage had become recognized in English law, the hazard of wonder precedents “unexploded land mines, ready to do harm endured. Such precedents are a hazard not so much to judiciaries (though a court might be ashamed to have to find its way round a precedent it had certainly not recognized endured) as to attorneys, who could be put at a substantial drawback in the courtroom since rival counsel efficaciously quotes as specialist a verdict which he has found in the procedure of a verbatim transcription accessible only by particular authorization from a court’s private library” (Bingham). The accessibility of electronic transcriptions from legal records has diminished this hazard significantly; however, the experience of the astonishment precedent residues noteworthy for our resolutions because it delivers a reason for skeptical the entitlement that “a precedential judgment's meaning in law is fundamentally public” (Bingham) that the judgment must be freely available. Any such decision is likely to be publicly available, but it does not have to be. These records have played a significant role in influencing the precedent of the judiciary.


“Judiciaries do create regulation; they build decree all the time and they continuously have. Commandments do alter as fresh circumstances thrive and founded on the Realistic theory, it has to be acknowledged that that juries do indeed make new law and that this is essential where there are no prevailing rules to covering the condition, as asserted by the law makers” (Law Teacher). As one cannot permit verdict on a case trusting on judgments made in the earlier, which have not formerly happened. Nevertheless, case law is grounded on judicial impulse. It is a structure where the law does not assure juries but by what they contemplate the law must be. “The consequence is that judges have the capability to use the law as they opinion is the right use of it in a particular situation; a paradigm shift away from the unprecedented structure of passing judgments” (Law Teacher). The subject of judicial independence is a basis of disagreement as far as law-creating or law-discovery is related and there must be a equilibrium amongst the responsibilities of Congress and the court as the judiciary is a part of gracious as well as complex strategy making and numerous individuals contemplate that the strategy must only be matter of concern for government and Congress; judiciaries identify this as seen with the euthanasia occasions. “Though, the responsibility of the judiciary is a good thing as far as law making is apprehensive as new experiential dimensions are being familiarized into the law, thereby compliant a social advantage through augmented precision of the legal rule” (Law Teacher)

Works Cited

Amar, Akhil Reed. "On Lawson on Precedent." Harv. JL & Pub. Pol'y 17 (1994): 39.
Bingham, Tom. "The Business of Judging." Google Books. N.p., n.d. Web. 13 Jan. 2015.
Caminker, Evan H. "Precedent and prediction: The forward-looking aspects of inferior court decisionmaking." Tex. L. Rev. 73 (1994): 1.
Carp, Robert A., et al. "Voting Behavior of Judges Appointed by President Bush." Judicature 76 (1992): 298.
Do Judges Make Or Find The Law." Law Teacher. N.p., n.d. Web. 13 Jan. 2015.
Ely, John Hart. "The wages of crying wolf: A comment on Roe v. Wade." Yale Law Journal (1973): 920-949.
Lyons, David. Formal Justice and Judicial Precedent 38 Vand. L. Rev. 495 (1985)
Murphy, Richard W. "Separation of Powers and the Horizontal Force of Precedent." Notre Dame Law Review 78 (2003): 1075.
Kornhauser, Lewis A. "Adjudication by a resource-constrained team: Hierarchy and precedent in a judicial system." S. Cal. L. Rev. 68 (1994): 1605.
Schauer, Frederick. "Precedent and the necessary externality of constitutional norms." Harv. JL & Pub. Pol'y 17 (1994): 45.

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