Stare Decisis and Equitable Power
نویسندگان
چکیده
Abstract One of the main moral costs stare decisis lies in continuous possibility entrenching morally deficient decisions law. Although legal systems usually make provision for dealing with precedents, there are cases which obligation later courts to follow one these precedents is undefeated. This affects overall justification . traditional answer this problem consists accepting cost, on belief that benefits outweigh it. On view, when an undefeated a precedent, court must simply precedent. In article, I question approach and defend alternative solution. argue that, under some conditions, facing precedent should have power either or suspend its application parties by ordering temporary stay proceedings referring case higher overrule proposal entails exercising equitable recognised system, against three possible objections.
منابع مشابه
Why Stare Decisis?∗
All Courts rule ex-post, after most economic decisions are sunk. This can generate a time-inconsistency problem. From an ex-ante perspective, Courts will have the ex-post temptation to be excessively lenient. This observation is at the root of the rule of precedent, known as stare decisis. Stare decisis forces Courts to weigh the benefits of leniency towards the current parties against the bene...
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Two important legal reforms in court procedure have taken place in Brazil recently: súmula vinculante (all courts now have to follow the reasoning of the Supreme Court in similar cases) and requisito da repercussão geral (the Supreme Court only hears cases that are of general importance). These two procedural rules respond to a long debate in the Brazilian legal community on how to address cour...
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ژورنال
عنوان ژورنال: Law and Philosophy
سال: 2023
ISSN: ['0167-5249', '1573-0522']
DOI: https://doi.org/10.1007/s10982-023-09476-y