Editing Precedent (section)

===Criticism of precedent===

One of the most prominent critics of the development of legal precedent on a case-by-case basis as both overly reactive and unfairly retroactive was philosopher [[Jeremy Bentham]]. He famously attacked the common law as "dog law":
{{Blockquote|When your dog does anything you want to break him of, you wait till he does it, and then beat him for it. This is the way you make laws for your dog: and this is the way the judges make law for you and me.<ref name="Juratowitch">{{cite book |last1=Juratowitch |first1=Ben |title=Retroactivity and the Common Law |date=2008 |publisher=Hart Publishing |location=Oxford |isbn=9781847314109 |page=41 |url=https://books.google.com/books?id=2u3bBAAAQBAJ&pg=PA41 |access-date=29 September 2020}}</ref><ref name="Wacks">{{cite book |last1=Wacks |first1=Raymond |title=Understanding Jurisprudence: An Introduction to Legal Theory |date=2015 |publisher=Oxford University Press |location=Oxford |isbn=9780198723868 |page=74 |edition=4th |url=https://books.google.com/books?id=EiDZBQAAQBAJ&pg=PA74 |access-date=30 September 2020}}</ref>}}

In a 1997 book, attorney Michael Trotter blamed overreliance by American lawyers on precedent — especially persuasive authority of marginal relevance — rather than the merits of the case at hand, as a major factor behind the escalation of [[legal costs]] during the 20th century. He argued that courts should ban the citation of persuasive authority from outside their jurisdiction and force lawyers and parties to argue only from binding precedent, subject to two exceptions:

# cases where the foreign jurisdiction's law is the subject of the case, or
# instances where a litigant intends to ask the highest court of the jurisdiction to overturn binding precedent, and therefore needs to cite persuasive precedent to demonstrate a countervailing trend in other jurisdictions.<ref>{{cite book |first=Michael H. |last=Trotter |title=Profit and the Practice of Law: What's Happened to the Legal Profession |location=Athens, GA |publisher=University of Georgia Press |year=1997 |pages=161–163 |isbn=0-8203-1875-2 }}</ref>

The disadvantages of ''stare decisis'' include its rigidity, the complexity of learning law, the fact that differences between certain cases may be very small and thereby appear illogical and arbitrary, and the slow growth or incremental changes to the law that are in need of major overhaul.{{citation needed|date=September 2021}}

An argument often leveled against precedent is that it is [[democracy|undemocratic]] because it allows judges, who may or may not be elected, to make law.<ref>{{cite journal |last=McClellan |first=James |title=The Doctrine of Judicial Democracy |journal=Modern Age |location=Chicago |volume=14 |issue=1 |year=1969 |pages=19–35 |url=https://isistatic.org/journal-archive/ma/14_01/mcclellan.pdf |archive-date=1 March 2017 |archive-url=https://web.archive.org/web/20170301092855/https://isistatic.org/journal-archive/ma/14_01/mcclellan.pdf }}</ref>