Pros and Cons
There is much discussion about the virtue or irrationality of using case law in the context of stare decisis. Supporters of the system, such as minimalists, argue that obeying precedent makes decisions "predictable." For example, a business person can be reasonably assured of predicting a decision where the facts of his or her case are sufficiently similar to a case decided previously. This parallels the arguments against retroactive (ex post facto) laws banned by the U.S. Constitution. An argument often used against the system is that it is undemocratic as it allows judges, which may or may not be elected, to make law.
A counter-argument (in favor of the concept of stare decisis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so. Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedent that the judge supported anyway, but ignoring it in order to change precedent with which the judge disagreed.
Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive. An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and increased by further precedent until a result is obtained that is greatly different from the original understanding of the Constitution. Stare decisis is not mandated by the Constitution, and if it causes unconstitutional results then the historical evidence of original understanding can be re-examined. In this opinion, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedent. See also the living tree doctrine.
Read more about this topic: Binding Precedent
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“Quite generally, the familiar, just because it is familiar, is not cognitively understood. The commonest way in which we deceive either ourselves or others about understanding is by assuming something as familiar, and accepting it on that account; with all its pros and cons, such knowing never gets anywhere, and it knows not why.... The analysis of an idea, as it used to be carried out, was, in fact, nothing else than ridding it of the form in which it had become familiar.”
—Georg Wilhelm Friedrich Hegel (1770–1831)