DOCSLIB.ORG

Defining Dicta

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Defining Dicta GW Law Faculty Publications & Other Works Faculty Scholarship 2005 Defining Dicta Michael B. Abramowicz George Washington University Law School, [email protected] Maxwell L. Stearns Follow this and additional works at: https://scholarship.law.gwu.edu/faculty_publications Part of the Law Commons Recommended Citation Michael Abramowicz, Defining Dicta, 57 Stan. L. Rev. 953 (2005) This Article is brought to you for free and open access by the Faculty Scholarship at Scholarly Commons. It has been accepted for inclusion in GW Law Faculty Publications & Other Works by an authorized administrator of Scholarly Commons. For more information, please contact [email protected]. Defining Dicta by Michael Abramowicz* and Maxwell Stearns** I. INTRODUCTION ..............................................................................................................3 II. THE PROBLEMS OF DICTA ..............................................................................................9 A. Bakke ......................................................................................................................11 1. Justice Powell’s Opinion...................................................................................13 2. Analysis of Justice Powell’s Opinion ...............................................................15 a. A Presumptive Definition ...........................................................................16 i. Necessary propositions and sufficient propositions ............................16 ii. The problem of alternative possible justifications ..............................17 iii. The problem of alternative justifications.............................................19 iv. Supportive and nonsupportive propositions........................................21 b. Possible Reasons for Deviating from the Presumptive Definition .............22 i. The problem of structured analysis .....................................................23 ii. The problem of hypotheticals..............................................................29 iii. The problem of biconditional statements ............................................31 iv. The problem of breadth .......................................................................34 3. Summary and Comparison with Previous Analyses.........................................35 B. Summary of Identified Problems............................................................................40 III. POSITIVE MODELS AND NORMATIVE FACTORS..............................................................42 A. Modeling Stare Decisis and the Holding-Dicta Distinction ...................................46 1. Modeling Horizontal Stare Decisis...................................................................48 2. Modeling Vertical Stare Decisis .......................................................................52 3. Modeling the Breadth of Holdings ...................................................................59 B. The Judicial Four C’s..............................................................................................66 1. Constraint..........................................................................................................67 2. Consideration ....................................................................................................70 3. Clarity ...............................................................................................................72 4. Candor...............................................................................................................73 C. Assessing Propositions and Problem Categories ....................................................75 1. Necessary Propositions .....................................................................................75 2. Sufficient Propositions and Related Problems..................................................76 3. Nonsupportive Propositions..............................................................................79 4. Structured Analysis...........................................................................................81 5. Hypotheticals ....................................................................................................86 * Associate Professor, George Washington University Law School. ** Professor, George Mason University School of Law. For excellent comments and suggestions, we thank participants at a workshop at the George Washington University Law School. For outstanding research assistance, we thank James Boiani, David Divine, and Leah Howard. Any remaining errors should be counted as dicta. 2 6. Biconditional Statements ..................................................................................86 7. Breadth..............................................................................................................89 8. Summary...........................................................................................................90 IV. DEFINING HOLDING AND DICTA ....................................................................................92 A. The Inadequacy of Existing Definitions .................................................................93 1. Reconciliability.................................................................................................93 2. Factual Materiality............................................................................................100 3. Necessity...........................................................................................................103 4. Preclusivity .......................................................................................................109 B. Necessary Conditions for a Holding.......................................................................113 1. Actually Decided ..............................................................................................116 2. Based on Facts of the Case ...............................................................................122 3. Leading to the Judgment...................................................................................124 V. APPLICATIONS ...............................................................................................................125 A. Bakke ......................................................................................................................125 B. Roe ..........................................................................................................................127 1. Justice Blackmun’s Opinion for the Court Error! Bookmark not defined. 2. Applying the Definition Error! Bookmark not defined. C. Penn Central............................................................................................................133 D. Blakely ....................................................................................................................139 E. Grutter and Gratz ....................................................................................................141 VI. CONCLUSION..................................................................................................................142 I. INTRODUCTION Even the longest, most complicated, and divisive appellate court decisions do not come with code books.1 Appellate court decisions increasingly involve complex constitutional, statutory, or administrative law issues, and include lengthy discussions of case facts,2 findings 1 In contrast, legislatures routinely offer contemporaneous materials to assist in the task of statutory interpretation, including cross-referencing provisions and definitions of terms. See generally WILLIAM N. ESKRIDGE, JR. ET AL., CASES AND MATERIALS ON LEGISLATION: STATUTES AND THE CREATION OF PUBLIC POLICY 413, 680-82 (3d ed. 2002). Legislative history also informs statutory interpretation, and occasionally Congress will give explicit instructions about interpreting legislative history. For example, following a dispute concerning the meaning of “business necessity” for purposes of § 105 of the Civil Rights Act of 1991, the Civil Rights Act of 1991, Pub. L. 102-166, 105 Stat. 1071 (codified at 42 U.S.C. 1981 (Supp.1992)), members of Congress included a three paragraph memorandum within the Congressional Record. This was then referred to as “exclusive legislative history,” see 137 Cong. Rec. S 15,276 (daily ed. Oct. 25, 1991), and was later recognized as such within the statute. See Civil Rights Act of 1991, § 105(b). In contrast, appellate opinions do not generally include contemporaneously produced materials designed to assist future courts in discerning which aspects of those opinions are or are not controlling, and where “judicial history” exists, it is generally considered to be irrelevant to interpretation. See generally Adrian Vermeule, Judicial History, 108 YALE L.J. 1311 (1999) (exploring the parallels and differences between legislative and judicial history). 2 For general statistics on the increasing length of judicial opinions, see RICHARD POSNER, THE FEDERAL COURTS: CRISIS AND REFORM 112-16 (1985). 3 below, hypothetical disputes of varying significance to legal issues presented, and discursive and sometimes tendentious treatment of precedent. Judges sometimes identify their holding with precision, and in so doing, imply that all other aspects of the discussion, however persuasive and seemingly relevant those discussions might be to the immediate case disposition, are instead dicta.3 More frequently, however, judges offer looser characterizations,
Load more

Recommended publications
  • Distinguishing Between Governmental and Proprietary Functions
    Trey Allen, Local Government Immunity to Lawsuits in North Carolina (UNC School of Government) (2018) Chapter 2 Distinguishing Between Governmental and Proprietary Functions The distinction between governmental and proprietary functions is a criti- cal feature of governmental immunity because of the judiciary’s decision to restrict the immunity to claims arising from governmental functions. This chapter reviews the origin of the distinction in immunity cases, the other uses to which the courts have sometimes put the distinction, the rationale for limiting governmental immunity to governmental functions, and the problems the courts have experienced in applying the governmental/propri- etary distinction to particular activities. The chapter then turns to Estate of Williams v. Pasquotank County Parks & Recreation Department,61 the 2012 case in which the North Carolina Supreme Court reformulated the criteria for classifying specific undertakings as either governmental or proprietary. The chapter examines each part of the Williams test and considers the potential impact of Williams on classifications made in earlier cases.62 2.1 Origin of Governmental/Proprietary Distinction The North Carolina Supreme Court first held that cities are immune to tort claims arising from governmental but not proprietary functions in Moffitt v. City of Asheville,63 an 1889 case. Prior to Moffitt, the default rule seems 61. 366 N.C. 195 (2012). 62. This chapter incorporates material from Trey Allen, The Impact of Williams v. Pasquotank County on Local Government Liability, Part I: Public Parks and Government Office Buildings, Loc. Gov’t L. Bull. No. 137 (May 2015), https:// www.sog.unc.edu/sites/www.sog.unc.edu/files/reports/lglb137.pdf.
    [Show full text]
  • Precedent Unbound? Contemporary Approaches to Precedent in Canada
    The Peter A. Allard School of Law Allard Research Commons Faculty Publications Allard Faculty Publications 2007 Precedent Unbound? Contemporary Approaches to Precedent in Canada Debra Parkes Allard School of Law at the University of British Columbia, [email protected] Follow this and additional works at: https://commons.allard.ubc.ca/fac_pubs Part of the Courts Commons Citation Details Debra Parkes, "Precedent Unbound? Contemporary Approaches to Precedent in Canada" ([forthcoming in 2007]) 32:1 Man LJ 135. This Working Paper is brought to you for free and open access by the Allard Faculty Publications at Allard Research Commons. It has been accepted for inclusion in Faculty Publications by an authorized administrator of Allard Research Commons. Page 1 TITLE: Precedent Unbound? Contemporary Approaches to Precedent in Canada AUTHOR: Debra Parkes SOURCE: Manitoba Law Journal CITED: (2007) 32 Man. L.J. 135 - 162 1 Stare decisis is an abbreviation of the Latin phrase stare decisis et non quieta movere, and may be translated as "to stand by decisions and not to disturb settled matters."1 In Gulliver's Travels, the English satirist Johnathan Swift had Gulliver say: It is a maxim among these lawyers, that whatever hath been done before, may le- gally be done again: and therefore they take special care to record all the deci- sions formerly made against common justice and the general reason of mankind. These under the name of precedents, they produce as authorities, to justify the most iniquitous opinions; and the judges never fail of decreeing accordingly.2 While the notion that Canadian appellate judges slavishly adhere to outdated precedent in a manner contrary to "common justice and the general re ason of mankind" does not accurately describe the current reality, there remains a lively and important debate about the functions, values and limits of "abiding by things decided" in common law systems.3 In this vein, Justices Steel and Freedman in the recent R.
    [Show full text]
  • Recovering Rylands: an Essay for Robert Rabin
    DePaul Law Review Volume 61 Issue 2 Winter 2012: Symposium - Festschrift Article 10 for Robert Rabin Recovering Rylands: An Essay for Robert Rabin Gregory C. Keating Follow this and additional works at: https://via.library.depaul.edu/law-review Recommended Citation Gregory C. Keating, Recovering Rylands: An Essay for Robert Rabin, 61 DePaul L. Rev. 543 (2012) Available at: https://via.library.depaul.edu/law-review/vol61/iss2/10 This Article is brought to you for free and open access by the College of Law at Via Sapientiae. It has been accepted for inclusion in DePaul Law Review by an authorized editor of Via Sapientiae. For more information, please contact [email protected]. RECOVERING RYLANDS: AN ESSAY FOR ROBERT RABIN Gregory C. Keating* INTRODUCTION Professor Robert Rabin's discussion of Rylands v. Fletcher appears as something of an aside in a lovely and influential article on the rise of fault liability. That article-The Historical Development of the Fault Principle:A Reinterpretation'-isone among a number of influ- ential, widely admired papers that Rabin has written on central topics in the law of torts.2 This Festschrift has provided the pleasurable op- portunity to revisit several of these papers and to discover that they are even richer and more instructive than I remembered. We-or at least I-remember important papers by recalling their fundamental claims and insights. There is much to be said for this form of mental indexing, but one of its costs is forgetting the enormous richness of genuinely distinguished papers. The best papers resist reduction even to their general lessons.
    [Show full text]
  • The Analysis of Legal Opinions
    • BRIEF COMMENT ON THE PRONONCEMENTS Sentencia Española : an appeal lodged by J.M.L.L. and M. C. M. L to the Supreme Court (as last resort) against the decision pronounced by the “Audiencia Provincial de A Coruña” which found them guilty of an offense against public health as the result of dealing or drug trafficking. British Decision : it is Donoghue v Stevenson’s case, one of the most famous cases in Scottish legal history. Donoghue brought and action against Stevenson, the manufacturer of a product that was consumed by the former. The appellant averred the bottle contained the decomposed remains of a snail, which caused her a severe gastroenteritis and other injuries. The House of Lords declared that the principles of their judgment also applied in English law. US Opinion : it is a plead against a policy promulgated by a federal government policy. The appellants sought to decriminalize the use of marihuana for limited medical purposes and allow physicians to recommend marijuana for medical purposes. • GENRES As you know a genre is a distinctive communicative event that serves a certain communicative purpose; it is a highly structured and conventionalized communicative event. Each genre has a concrete intention, positioning, form and functional value, which restricts its use of linguistic resources. Although limited, linguistic choices are exploited in each genre to serve its purposes. • GENERIC SCRUTINITY We will analyse the following points: Generic aspects of texts Macrostructure (cognitive), divided into: Sections Movements or parts within each section Contextual focus (foco contextual) or rhetorical function: Expositive Instructive Argumentative Textual aspects Intertextuality or the existence of discursive connections with preceding legislation or other texts Formal aspects morphosyntactic elements Nominalization Passives Conditionals Anaphora Whiz Deletion, etc.
    [Show full text]
  • Rule of Law (ROL) Ratio Decidendii
    Rule of Law (ROL) • Legal principle that law should govern a nation (None is above the law) • Characteristics of legal system complying with ROL: o Law applied equally to all o Courts uphold legal rights of citizens o Nobody punished unless conduct expressly illegal • Generally, legal system that complies with ROL has: o Separation of powers o No double jeopardy (tried 2 times for same crime) o Procedural fairness Types of Justice • Retributive – Proper response to wrongful act • Restorative – Restoring victim and reintegrating perpetrator • Procedural – fair trial, timely, evidence • Distributive – Dividing where it is going (when economic resources & power are divided) Ratio Decidendii R v Dudley & Stevens (1884) • Necessity does not give you a defence to commit a crime Precedent • Permits court to apply current community standards with fairness & flexibility Ratio Decidendi & Obiter Dictum • Ratio decidendi = legal proposition essential to case o Stare decisis = let decision stand o Binding on Lower courts • Obiter Dictum = opinions, words not essential to decision (not binding on lower courts [may be persuasive]) Establishing Precedent Balmain New Ferry Co Ltd v Robertson (1906) 4 CLR 379 • Person presumed to be aware of terms of contract from previous dealings o If had previous dealings before, assumed you know T&C Criminal & Civil Law • Criminal Law – wrongs against society o Prosecuted by state o Punishable by imprisonment ▪ Murder, treason, rape, theft o Presumption of innocence (until proven guilty) ▪ Standard of proof is ‘beyond
    [Show full text]
  • Domestic Relations-Application of Estoppel to Prevent Party Obtaining a Foreign Divorce from Subsequently Attacking Its Validity
    Washington and Lee Law Review Volume 5 | Issue 1 Article 11 Spring 3-1-1948 Domestic Relations-Application Of Estoppel To Prevent Party Obtaining A Foreign Divorce From Subsequently Attacking Its Validity Follow this and additional works at: https://scholarlycommons.law.wlu.edu/wlulr Part of the Conflict of Laws Commons, and the Family Law Commons Recommended Citation Domestic Relations-Application Of Estoppel To Prevent Party Obtaining A Foreign Divorce From Subsequently Attacking Its Validity, 5 Wash. & Lee L. Rev. 114 (1948), https://scholarlycommons.law.wlu.edu/wlulr/vol5/iss1/11 This Comment is brought to you for free and open access by the Washington and Lee Law Review at Washington & Lee University School of Law Scholarly Commons. It has been accepted for inclusion in Washington and Lee Law Review by an authorized editor of Washington & Lee University School of Law Scholarly Commons. For more information, please contact [email protected]. 1948] CASE COMMENTS CASE COMMENTS BASTARDS-ILLEGITIMATE CHILD'S RIGHT TO PENSION PAYABLE TO "CHILD" OF DECEASED MEMBER OF BENEFICIAL ASSOCIATION. [Min- nesota] Although the early civil and canon law allowed legitimation of an illegitimate child by the subsequent intermarriage of its parents,1 the common law showed no such leniency, branding the child as filius nullius, the child of no one. He could not inherit from his mother or father, nor could he have heirs other than those of his own body.2 The basic reason for the rule was probably the pressure against illicit sex relations,$ but the doctrine whereby the child born out of wedlock was treated as filius nullius4 was also greatly influenced by the fact that marriage was an event which could be proved, whereas fatherhood of an illegitimate child could not; and thus, in a day when land was.
    [Show full text]
  • Stare Decisis and Due Process Amy Coney Barrett Notre Dame Law School, [email protected]
    Notre Dame Law School NDLScholarship Journal Articles Publications 2003 Stare Decisis and Due Process Amy Coney Barrett Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Constitutional Law Commons, and the Courts Commons Recommended Citation Amy C. Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/450 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. STARE DECISIS AND DUE PROCESS AMY CONEY BARRETT* INTRODUCTION Courts and commentators have devoted a great deal of attention lately to the constitutional limits of stare decisis. The Eighth Circuit's decision in Anastasoff v. United States has sparked scholarly and judicial debate about whether treating unpublished opinions as devoid of precedential effect violates Article III.1 Debates have also erupted over the question whether Congress has the power to abrogate stare decisis by statute,2 and the related question whether stare decisis is a * Assistant Professor, Notre Dame Law School. Jesse Barrett, Joe Bauer, A.J. Bellia, Bill Kelley, Orin Kerr, Chip Lupu, John Nagle, Bo Rutledge, Jay Tidmarsh, and Julian Velasco provided helpful comments on earlier drafts of this Article. Keith Eastland provided excellent research assistance. Much of the work on this Article was done while I was an Olin Fellow at George Washington Law School, and I thank the Olin Foundation and GW Law School for their support.
    [Show full text]
  • Law 410 Contracts CAN O'byrne Winter 2018
    Law 410 Contracts CAN O’Byrne Winter 2018 Contracts CAN Winter ‘18 CONSIDERATION ........................................................................................................................................................1 GENERAL ...............................................................................................................................................................1 EXCHANGES AND BARGAINS ..................................................................................................................................1 The Governors of Dalhouise College at Halifax v The Estate of Arthur Boutilier, Deceased................................1 Brantford General Hospital Foundation v Marquis Estate ................................................................................2 Wood v Lucy, Lady Duff-Gordon .....................................................................................................................3 BASIS FOR IMPLIED PROMISE .................................................................................................................................4 Lampleigh v Brathwait ...................................................................................................................................4 BONA FIDE COMPROMISES OF DISPUTES CLAIMS ...................................................................................................4 B.(D.C.) v Arkin ..............................................................................................................................................4
    [Show full text]
  • Liability for Concurrent Breach of Contract
    Washington University Law Review Volume 73 Issue 1 January 1995 Liability for Concurrent Breach of Contract Daniel J. Bussel UCLA School of Law Follow this and additional works at: https://openscholarship.wustl.edu/law_lawreview Part of the Contracts Commons Recommended Citation Daniel J. Bussel, Liability for Concurrent Breach of Contract, 73 WASH. U. L. Q. 97 (1995). Available at: https://openscholarship.wustl.edu/law_lawreview/vol73/iss1/2 This Article is brought to you for free and open access by the Law School at Washington University Open Scholarship. It has been accepted for inclusion in Washington University Law Review by an authorized administrator of Washington University Open Scholarship. For more information, please contact [email protected]. LIABILITY FOR CONCURRENT BREACH OF CONTRACT DANIEL J. BUSSEL* I. INlODUCTION If A and B perform independent concurrent acts of negligence each sufficient to injure C, who suffers an indivisible harm as a result, traditionally C can collect damages from either A or B, as C chooses.! If A pays a disproportionate share of C's damages, then A may assert rights of contribution to compel B to reimburse A up to B's proportional share of C's damages. If A and B independently concurrently breach contracts, each breach being sufficient to injure C, who suffers an indivisible harm as a result, ought the same rules apply? In the absence of a specific agreement of the parties,2 there are four plausible solutions to allocating losses occasioned by concurrent breach of contract. One might: I) excuse both breaches on the ground that in each case the other breach is a supervening cause of the plaintiff's harm; 2) import tort notions of joint and several liability; 3) impose apportioned (several but not joint) liability; or 4) identify the more responsible breacher, hold it for the full damages and excuse the other.
    [Show full text]
  • Tort Law Is State Law: Why Courts Should Distinguish State and Federal Law in Negligence- Per-Se Law Barbara Kritchevsky [email protected]
    American University Law Review Volume 60 | Issue 1 Article 2 2010 Tort Law is State Law: Why Courts Should Distinguish State and Federal Law in Negligence- Per-Se Law Barbara Kritchevsky [email protected] Follow this and additional works at: http://digitalcommons.wcl.american.edu/aulr Part of the Conflicts of Law Commons, State and Local Government Law Commons, and the Torts Commons Recommended Citation Kritchevsky, Barbara (2010) "Tort Law is State Law: Why Courts Should Distinguish State and Federal Law in Negligence-Per-Se Law," American University Law Review: Vol. 60: Iss. 1, Article 2. Available at: http://digitalcommons.wcl.american.edu/aulr/vol60/iss1/2 This Article is brought to you for free and open access by the Washington College of Law Journals & Law Reviews at Digital Commons @ American University Washington College of Law. It has been accepted for inclusion in American University Law Review by an authorized administrator of Digital Commons @ American University Washington College of Law. For more information, please contact [email protected]. Tort Law is State Law: Why Courts Should Distinguish State and Federal Law in Negligence-Per-Se Law This article is available in American University Law Review: http://digitalcommons.wcl.american.edu/aulr/vol60/iss1/2 BARBARA KRITCHEVSKY.OFFTOPRINTER 60.1 TORT LAW IS STATE LAW: WHY COURTS SHOULD DISTINGUISH STATE AND FEDERAL LAW IN NEGLIGENCE-PER- SE LITIGATION BY BARBARA KRITCHEVSKY TABLE OF CONTENTS Introduction ................................................................................................. 72 I. The Doctrine of Negligence Per Se .................................................. 76 A. The Evolving Rationales for Negligence Per Se ...................... 76 B. The Scope of Negligence-Per-Se Liability ...............................
    [Show full text]
  • Privity of Contract Contracts for the Benefit of Third Parties
    PRIVITY OF CONTRACT CONTRACTS FOR THE BENEFIT OF THIRD PARTIES LAW COMMISSION LAW COM No 242 The Law Commission (LAW COM No 242) PRIVITY OF CONTRACT: CONTRACTS FOR THE BENEFIT OF THIRD PARTIES Item 1 of the Sixth Programme of Law Reform: The Law of Contract Presented to Parliament by the Lord High Chancellor .. by Command of Her Majesty July 1996 LONDON: HMSO E18.20 - - Cm 3329 The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law. The Commissioners are: The Honourable Mrs Justice Arden DBE, Chairman Professor Andrew Burrows Miss Diana Faber Mr Charles Harpum Mr Stephen Silber QC The Secretary of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London, WClN 2BQ. The terms of this report were agreed on 19 June 1996. I .. 11 THE LAW COMMISSION PRIVITY OF CONTRACT: CONTRACTS FOR THE BENEFIT OF THIRD PARTIES CONTENTS Paragraph Page SECTION A: BACKGROUND PART I: INTRODUCTION 1 PART 11: THE PRESENT LAW AND CALLS FOR REFORM 1. The Present Law 2.1 6 (1) A Brief Statement of the Third Party Rule in Contract 2.1 6 (2) Development of the Third Party Rule 2.2 6 (3) Existing Exceptions to, or Circumventions ofJ the Third Party Rule 2.8 9 Trust of the Promise 2.8 9 Covenants Concerning Land 2.10 10 Tort of Negligence 2.13 12 Agency 2.15 14 Assignment 2.16 15 Collateral Contracts 2.18 16 Techniques Used to Enable Third Parties to Take the Benefit of Exclusion Clauses 2.19 16 Promisee’s Remedies Assisting the Third Party
    [Show full text]
  • The Principle of Stare Decisis
    THE AMERICAN LAW REGISTER. DECEMBER 1886. THE PRINCIPLE OF STARE DECISIS. I. REASONS AND IMPORTANCE OF THE RuLE.-The policy of the courts, and the principle upon which rests the authority of judicial decisions as precedents in subsequent litigations, is embodied in the maxim, Stare decisis et non quieta mnovere-to abide by the pre- cedents and not to 'disturb settled points. Its meaning is, that when a point of law has been once solemnly and necessarily settled by the decision of a competent court, it will no longer be considered open to examination, or to a new ruling, by the same tribunal or those which are bound to follow its adjudications. The reasons which underlie this rule are stated by Chancellor KENT, in a much quoted passage from the Commentaries, as follows: "A solemn decision upon a point of law, arising in any given case, becomes an authority in a like case, because it is the highest evidence which we can have of the law applicable to the subject, and the judges are bound to follow that decision so long as it stands unreversed, unless it can be shown that the law was misunderstood or misapplied in that particular case. If a decision has been made upon solemn argument and mature deliberation, the presumption is in favor of its correctness; and the community have a right to regard it as a just declaration or exposition of the law, and to regulate their actions and contracts by it. It would, therefore, be extremely inconvenient to the public, if precedents were not duly regarded and implicitly followed.
    [Show full text]