Stare Decisis and Common Sense in American Civil and Criminal Jurisprudence

John McClellan Marshall, Michael D. Kmetz, George A. Otstott

Abstract


Based on various law sources, the American common law is connected by a particular role of prior judicial rulings as a basis of judicial practice. The principle of stare decisis, which exists within its framework, leads to considering decisions of courts of higher instances as binding (settled in a binding manner of a given case type in the convention of res iudicata). However, it does not mean that precedents may not be amended or broken. In such a situation following factors may appear: defective rulings, triggering incoherent or unjust consequences, contraction with other precedents, and change of circumstances, which have led to a precedent decision to be taken.


Keywords


stare decisis; common sense; civil law; criminal law; American jurisprudence

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References


Holmes O.W., Jr., The Common Law, Boston 1881.




DOI: http://dx.doi.org/10.17951/sil.2018.27.1.59
Data publikacji: 2018-05-02 07:55:21
Data złożenia artykułu: 2018-02-07 23:34:04

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