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1 results

  • 13 - Overruling

  • Melvin A. Eisenberg, University of California, Berkeley
  • Book:
    Legal Reasoning
    Published online:
    22 September 2022
    Print publication:
    29 September 2022, pp 98-110

  • Summary

    Overruling occurs when a court overturns – abolishes – a rule established in a binding precedent. Overruling may be explicit or implicit. Explicit overruling occurs when a court explicitly abolishes a rule established by precedents in its jurisdiction and replaces it with the opposite rule. If a rule established in a precedent qualifies for overruling, normally a court will explicitly overrule it. In some cases, however, instead of explicitly overruling the rule, a court implicitly overrules it by the process of transformation, in which a court purports to follow a rule while actually undoing it.

    Overruling is guided by a principle that is implicit in the case law. Under this principle a common law rule should be overruled if it is substantially incongruent with social morality, social policy, and experience; if it is inconsistent with other, sound rules; if it has been riddled with inconsistent distinctions; or if it is manifestly inequitable and unjust; and if the value of overruling the rule in question exceeds the value of retaining it.