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Potential of Precedent in the Statutory Legal Order

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Edited By Leszek Leszczyński, Bartosz Liżewski and Adam Szot

This book is devoted to various aspects of the potential of precedent as a legal category and the precedential practice as an element of the law in statutory legal orders. It presents a complex approach to the problems involved in precedential practice, including its theoretical consideration and generalization of the practical use of prior judicial decisions as precedents (based on the observation of Polish and European judicial practice) as well as comparative and prospective remarks dealing with the role of precedents in the statutory law order.

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John McClellan Marshall: The Utility of Stare Decisis in American Common Law Jurisprudence

The Utility of Stare Decisis in American Common Law Jurisprudence

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John McClellan Marshall

Abstract: The paper focuses on the stare decisis principle and its influence on the formation of precedent and later judgements in the United States constitutional order. The precedent practice of American courts is being analyzed in relation to various branches of law in a complex system of state and federal courts. It also discovers how stare decisis influence the practical aspects of legal practices of attorneys.

Keywords: stare decisis, common law, precedent

“The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics”. This statement by Justice Oliver Wendell Holmes, Jr.1 sums up not only the underlying philosophy of the common law system. It also posits the reason behind the principle of stare decisis and emphasizes its importance in that system. While it is a commonplace that the principal distinction between the civil law and common law systems is that the latter is more flexible in its ability to evolve with society, it is not totally accurate. The civil law system, while it is less flexible as to the discretion vested in the judiciary, has the ability to evolve with the times through the ability to evolve through the political action of the legislative branch of government. The distinction, therefore, is rooted in the fundamental polity that...

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