Editing Precedent (section)

===Court formulations===

Justice Louis Brandeis, in a heavily footnoted dissent to ''Burnet v. Coronado Oil & Gas Co.'', {{law report|285|U.S.|393}}, 405–411 (1932), explained (citations and quotations omitted):

{{Blockquote|''Stare decisis'' is not ... a universal, inexorable command. "The rule of ''stare decisis'', though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided." ''Stare decisis'' is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function. ... In cases involving the Federal Constitution the position of this Court is unlike that of the highest court of England, where the policy of ''stare decisis'' was formulated and is strictly applied to all classes of cases. Parliament is free to correct any judicial error; and the remedy may be promptly invoked.

The reasons why this Court should refuse to follow an earlier constitutional decision which it deems erroneous are particularly strong where the question presented is one of applying, as distinguished from what may accurately be called interpreting, the Constitution. In the cases which now come before us there is seldom any dispute as to the interpretation of any provision. The controversy is usually over the application to existing conditions of some well-recognized constitutional limitation. This is strikingly true of cases under the due process clause when the question is whether a statute is unreasonable, arbitrary or capricious; of cases under the equal protection clause when the question is whether there is any reasonable basis for the classification made by a statute; and of cases under the commerce clause when the question is whether an admitted burden laid by a statute upon interstate commerce is so substantial as to be deemed direct. ...}}

In his "landmark dissent" in ''Burnet'', Brandeis "catalogued the Court's actual overruling practices in such a powerful manner that his attendant stare decisis analysis immediately assumed canonical authority."<ref name="Starger">{{cite book |last1=Starger |first1=Colin |editor1-last=Peters |editor1-first=Christopher J. |title=Precedent in the United States Supreme Court |date=2013 |publisher=Springer Science+Business Media |location=Dordrecht |isbn=978-94-007-7950-1 |pages=19–46 |chapter=The Dialectic of Stare Decisis Doctrine|chapter-url=https://books.google.com/books?id=zAbFBAAAQBAJ&pg=PA21}} Available via SpringerLink.</ref>

The [[United States Court of Appeals for the Third Circuit]] has stated:

{{Blockquote|A judicial precedent attaches a specific legal consequence to a detailed set of facts in an adjudged case or judicial decision, which is then considered as furnishing the rule for the determination of a subsequent case involving identical or similar material facts and arising in the same court or a lower court in the judicial hierarchy.<ref>''Allegheny General Hospital v. NLRB'', 608 F.2d 965, 969-970 (3rd Cir. 1979) (footnote omitted), as quoted in ''United States Internal Revenue Serv. v. Osborne (In re Osborne)'', 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).</ref>}}

The [[United States Court of Appeals for the Ninth Circuit]] has stated:

{{Blockquote|Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of ''stare decisis et non quieta movere''—"to stand by and adhere to decisions and not disturb what is settled". Consider the word "decisis". The word means, literally and legally, the decision. Under the doctrine of ''stare decisis'' a case is important only for what it decides—for the "what", not for the "why", and not for the "how". Insofar as precedent is concerned, ''stare decisis'' is important only for the decision, for the detailed legal consequence following a detailed set of facts.<ref>''United States Internal Revenue Serv. v. Osborne (In re Osborne)'', 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).</ref>}}

Lord Hodge of the UK Supreme Court quoted<ref name="Mohr Siebeck 2020 p=1">{{cite journal | title=Inhalt dieses Heftes | journal=Rabels Zeitschrift für ausländisches und internationales Privatrecht | publisher=Mohr Siebeck | volume=84 | issue=2 | year=2020 | issn=0033-7250 | doi=10.1628/rabelsz-2020-0028 | page=211 | language=de| doi-access=free }}</ref><ref>{{citation |last=Hodge |first=Patrick |authorlink=Patrick Hodge, Lord Hodge |contribution=The scope of judicial law-making in the common law tradition |title=Rabels Zeitschrift für ausländisches und internationales Privatrecht |publisher=Max-Planck-Institut für ausländisches und internationales Privatrecht |place=Hamburg, Germany |date=2019-10-28 |contribution-url=https://www.supremecourt.uk/docs/speech-191028.pdf |accessdate=2023-01-27 |quote=Judge-made law is an independent source of law in common law systems. }}</ref> Lord Wright in 1938 saying:

{{Blockquote|[T]hat is the way of the [[Common law#Disambiguate statute|common law]], the judges preferring to go from case to case, like the ancient Mediterranean mariners, hugging the coast from point to point, and avoiding the dangers of the open sea of system or science.}}