Suppose there’s a precedent that people don’t like. A case comes up and they are debating whether the precedent applies. Often the most effective way to argue against it is to cite previous cases where the precedent was applied and argue that the present case is different.
In order to maximally differentiate the current case they will exaggerate how appropriate the precedent was to the specific details of the previous case, even though they disagree with the precedent in principle because that case was already decided and nothing can be done about that now.
The long run effect of this is to solidify those cases as being good examples where the precedent applies and thereby solidify the precedent itself.
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October 13, 2014 at 1:30 am
enrique
This argument works if precedent (or stare decisis) were really binding on judges. The problem, however, is that (a) stare decisis itself is a judge-made rule and (b) judges themselves get to decide which previous cases are sufficiently similar to the case at hand. See: http://arizonastatelawjournal.org/is-stare-decisis-a-sand-castle-an-open-letter-to-my-law-professor-colleagues/
October 15, 2014 at 3:51 am
Sander Heinsalu
The precedent does not have to be legally binding to be effectively binding. For example, there could be unofficial punishments for breaking with precedent (not being promoted, not getting honours or awards, getting overruled on appeal).