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Stare decisis

Stare decisis is a latin term used in common law to express the notion that prior court decisions must be recognized as precedents, according to case law. The term means: "let the decision stand". This doctrine is not held within most civil law jurisdictions as it is argued that this prinicple interferes with the right of judges to interpret law; although, most such systems recognize the concept of jurisprudence constante, which argues that even though judges are independent, they should rule in a predictable and non-chaotic manner.

In general, a common law court system has lower courts, appellate courts and a supreme court. The lower courts administer most day-to-day justice. The lower courts are bound to follow precedents established by either the appellate court for their region and the supreme court. Appellate courts are only bound to follow the supreme court. The supreme court is not bound by any lower precedent. While lower courts are bound by higher court precedent some judges do not follow these precedents in an attempt to overturn them, or the judges know that the cost of appealing the judgment is prohibitive to the losing party and the decision will thus never be appealed even though technically incorrect.

Stare decisis is not formally a doctrine used in civil law court system, because it violates the principle that only the legislature may make law. In theory therefore, lower courts are generally not bound to precedents established by higher courts. In practice, the need to have predictability means that lower courts generally defer to precedents by higher courts and in a sense, the highest courts in civil law jurisdictions, such as the Cour de Cassation in France are recognized as being bodies of a quasi-legislative nature.

Courts may choose to follow other precedents, provided that no binding precedent exists.

An appellate court usually accepts only cases that involve an unclear point of law. They may sometimes take a case of particular importance.

A supreme court usually accepts only cases involving the interpretation of a country's basic law or legal system. In a few countries, the parliament acts as a supreme court.

There is much discussion about the virtue and irrationality of using case law under such a system. The largest advantage to this system is that it makes decisions predictably, that is, a business person can be assured of the same decision in the same sort of case. This helps business owners enter into new type of commerce. However the courts are often used as a means to stall deals gone bad as most business owners are aware that the time and expense of litigating an issue may mean that the proposed project may not be resolved for years until the case goes through the steps of discovery, pretrial motions, trial, appeal through several levels of appellate courts and then finally to collection or enforcement proceedings.



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