“DECISION OVERRULED”—FACING UP TO JUDICIAL FALLIBILITY

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Abstract:

The principle of stare decisis gives certainty and predictability to the law, but judges are not infallible. Judicial fallibility at first instance is dealt with by the appeal process. But appellate judges are not immune from the same phenomenon, which legal systems face up to in various ways. The key lies in the ability of an appellate court to depart from or overrule a decision taken at the same level in the judicial hierarchy which is shown to be wrong or out of date. Three examples are given of how this works in practice. There are some aspects of it that merit further attention. The technique of prospective overruling has not yet been authoritatively recognised, but it is likely to become a necessary tool for the development of human rights law.

Keywords: Human Rights; Judicial Fallibility; Prospective Overruling; Stare Decisis

Document Type: Research Article

Publication date: January 1, 2003

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  • Until 2007 the King's Law Journal was known as the King's College Law Journal. It was established in 1990 as a legal periodical publishing scholarly and authoritative Articles, Notes and Reports on legal issues of current importance to both academic research and legal practice. It has a national and international readership, and publishes refereed contributions from authors across the United Kingdom, from continental Europe and further afield (particularly Commonwealth countries and USA). The journal includes a Reviews section containing critical notices of recently published books.
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