Josh Hpap1

Josh Harpring

Precedent is using former decisions in order to justify the decision that you are making. When most people think of precedent they think of using a case from some time in history to make a ruling similar to the ruling that was made in the previous case. In some cases though one court that made a decision is wrong, so when the next court relates this case to the original case being used, they can set a “new precedent” and overrule the case before, essentially saying that the judge before made the wrong decision. That being said, Karl N. Llewellyn said that there are two types of precedent: strict (which I just described) and loose.

The loose view of precedent is the view that is mostly used today. This view is where the judge has control on how to rule on the case, essentially not using past cases to back up his decision. The judge decides how to rule on the case by using his own judgment or wisdom if you want to call it that. It was said in the book that for an unskillful judge, precedent will bind him and make his decisions for him, but for the skillful judge, the precedent will allow him to make whatever ruling he sees fit because he can use and manipulate the past cases to make them fit with the current case that he is seeing, and then use the past case manipulation to justify his ruling. So the difference between loose and strict precedent is that in strict precedence the judge/justice uses only past cases to back up his ruling, whereas with a loose precedence the judge/justice can make their ruling based on their own beliefs and then find a way to mildly back it up.

A recent example of a judge using loose precedent is the recent Supreme Court ruling that allows corporations to give as much money as they want to help a candidate running for office advertise to gain supporters. The title of the court case is Citizens United v. Federal Election Commission. This decision overturned several past court cases including McConnell v. FEC, and Nixon v. Shrink Missouri Government PAC. Some say that this is one of the biggest mess ups the courts have ever made, while some people like the decision because they think that that the court is following the constitution by allowing free speech by business. The reason that this is an example of loose precedent is because this case is similar to the ones I mentioned previously, and all of those cases had the opposite outcome of Citizens United v. Federal Election Commission. The courts overturned many years of rulings in favor of restrictions on who can donate how much in elections.

In conclusion, precedent is using former decisions of the same kind of crime to determine the punishment or decision on whether a law is constitutional or not. There is a difference between strict and loose precedent though, and today I think that loose precedent is mostly used and a recent example of loose precedent is Citizens United v. Federal Elections Commission.

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