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I was researching how lawyers, courts distinguish cases and I came across this article: https://plato.stanford.edu/entries/legal-reas-prec/index.html#PreLayDowRul. It says that cases can be distinguished by a later court based on the following constraints:

(1) in formulating the ratio of the later case, the factors in the ratio of the earlier case must be retained, and (2) the ruling in the later case must be such that it would still support the result reached in the precedent case.

It also says that cases can be distinguished "even though those facts do not feature in the ratio of the earlier case."

This article also points out that "this power is not merely given to courts of the same level of authority as the one laying down the precedent (as is the case with overruling), but is given to every court lower in the judicial hierarchy."

Is this reasoning valid? Doesn't this go against the doctrine of stare decisis?

Kmiec, Keenan. The Origin and Current Meanings of "Judicial Activism", California Law Review (2004): Some instances of disregarding precedent are almost universally considered inappropriate. For example, in a rare showing of unity in a Supreme Court opinion discussing judicial activism, Justice Stevens wrote that a circuit court "engaged in an indefensible brand of judicial activism" when it "refused to follow" a "controlling precedent" of the Supreme Court. The rule that lower courts should abide by controlling precedent, sometimes called "vertical precedent," can safely be called settled law. It appears to be equally well accepted that the act of disregarding vertical precedent qualifies as one kind of judicial activism. "Horizontal precedent," the doctrine requiring a court "to follow its own prior decisions in similar cases," is a more complicated and debatable matter....

Does the below from the article:

this power is not merely given to courts of the same level of authority as the one laying down the precedent (as is the case with overruling), but is given to every court lower in the judicial hierarchy.

conflict with what stare decisis is?

How can lower courts avoid a controlling precedent and not follow settled law as pointed out by Justice Stevens? Am I interpreting what the author is saying correctly? Can the lower courts add factors to the ratio of the earlier decision such that the result would be the same as in the earlier case and then distinguish seemingly like cases?

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  • You are using the word "ratio" in a way where I think you mean to say "rational" or "basis." The word "ratio" is not commonly used in law with this meaning. The linked article's reliance of the Latin term is not commonly used in law which used "ratio" in its plain sense of x per y.
    – ohwilleke
    Jul 19 at 20:33
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    @ohwilleke is the term ratio decidendi not used by American lawyers? In Commonwealth countries learning to identify the "ratio" of a decision is usually one of the first things taught in law school. Talking about the "ratio" is not so common in practice, because most cases don't raise difficult questions of law which require close analysis of precedent, but I'd still expect most lawyers to know what it means even if they have forgotten the word "decidendi."
    – sjy
    Jul 20 at 1:53
  • @sjy "is the term ratio decidendi not used by American lawyers?" It is never used by American lawyers or judges (at least not in the last 30 years).
    – ohwilleke
    Jul 20 at 14:20

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Distinguishing a case which was decided by a higher court does not violate the doctrine of stare decisis. If the case can be distinguished, then it is not a controlling precedent. The term "controlling" indicates not only that the decision is binding on lower courts, but also that it applies to (or cannot be distinguished from) the facts of the specific case in question.

Whether a precedent is "controlling" or not, in a particular case, could itself be a question for an appellate court. So if a lower court distinguishes a previous decision and therefore declines to follow it, the appellate court could say that was an error, and set aside the lower court's decision for not following a controlling precedent.

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  • Yes, but my question is can the lower court alter the scope of the precedent as outlined by the following conditions: (1) in formulating the ratio of the later case, the factors in the ratio of the earlier case must be retained, and (2) the ruling in the later case must be such that it would still support the result reached in the precedent case. Doesn't this go against stare decisis if a rule has been declared as controlling and a later case has facts that fall within that scope but still the lower court is able to alter the scope of the precedent.
    – physio
    Jul 19 at 17:00
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    A lower court cannot "alter the scope of the precedent." Each court must decide the "scope" of any precedent for itself in order to decide whether it is relevant. It is equivalent to say that the court must determine whether any precedent is controlling, or ascertain its ratio decidendi. That decision can be reviewed by an appellate court. In the SEP article you linked, I find section 2.2 ("Precedents as the application of underlying principles") to be a more accurate account than 2.1 ("Precedents as laying down rules") of how stare decisis works in practice.
    – sjy
    Jul 19 at 17:15

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