United States: Urging A Change In The Law: When To Set Aside Precedent?

The common law doctrine of stare decisis provides that once a court has decided a legal issue, subsequent cases presenting similar facts should be decided in conformity with the earlier decision.1 But the doctrine is not an inflexible rule. Judicial decisions simply determine the rights of the parties to an action that is before the court at a particular time in history. They are not, and are not meant to be, immutable laws governing the conduct of mankind and designed for the ages, such as the Ten Commandments. Rather, opinions "must be read in the setting of the particular cases and as the product of preoccupation with their special facts."2 The "precedential value of a judicial opinion is limited to the question presented by the facts of the case before the court."3

Stare decisis is "a principle of policy" and not a mechanical formula of adherence to a prior decision, however questionable.4 While the doctrine is not to be lightly cast aside, a court should not hesitate to overrule its precedents "when persuaded by the 'lessons of experience and the force of better reasoning.'"5 Adherence to a precedent "should depend upon its continuing practicality and the demands of justice."6

As Chief Judge Charles Breitel explained, "Invariably, the concern is with the exercise of restraint in overturning established well-developed doctrine and, on the other hand, the justifiable rejection of archaic and obsolete doctrine which has lost its touch with reality."7 The doctrine "was intended, not to effect a 'petrifying rigidity,' but to assure the justice that flows from certainty and stability. If, instead, adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it."8

The Court of Appeals has observed that it acts "in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice."9 And, as Judge Benjamin Cardozo put it, "If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors."10

In his lecture on "Adherence to Precedent," Cardozo observed that "the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him."11 However, this does not mean courts should slavishly follow an earlier decision "where it can be shown that the law has been misapplied, or where the former determination is evidently contrary to reason"12 or "out of step with the times and the reasonable expectations of members of society."13 In such cases, "where justice demands it," it is not only the right but "the duty of courts to re-examine the question."14

Not all precedents are accorded equal deference; some are more susceptible to being overruled than others. Thus, where the interpretation of the Constitution is at issue, courts are more prone to correct an error stemming from an earlier decision than they are in cases involving statutory provisions where Congress or a state Legislature can readily correct any perceived misinterpretation by the court of the legislative intent.15 But courts will not be bound by aberrant interpretations inconsistent with a long line of well-reasoned opinions. In such cases, "the courts need not wait for the Legislature to repair the damage."16

Examining the Source

The source of the existing rule is a significant consideration. "When the courts themselves have originated the rule, as for instance a common-law rule of tort, the courts will more readily re-examine it and, if necessary, set it aside."17

Tort cases, especially those involving personal injuries, are examples of where "courts will, if necessary, more readily re-examine established precedent to achieve the ends of justice in a more modern context,"18 than in cases involving real property, the interpretation of wills and commercial transactions where "the need for stability and predictability in the law outweigh the need to purge an erroneous decision."19 "[R]ules of law on which men rely in business dealings should not be changed in the middle of the game, but...[that has nothing] to do with bringing to justice a tort feasor who surely has no moral or other right to rely on a decision of the New York Court of Appeals."20 Examples of the court's willingness to bring tort common law into conformity with present day conditions abound.

In Welch v. Schiebelhuth21, the complaint alleged that Joan Welch purchased a cake baked in defendant's bakery and that her husband and guests of theirs (the husband's brother and mother) became ill as a result of eating the cake which was found to contain certain toxic matter. The court granted plaintiffs' motion to amend their complaint to add a cause of action for breach of an implied warranty of quality and wholesomeness in the sale of food, despite the lack of privity of contract between the seller and the injured parties. "The law is not static, but dynamic, and it is the duty of our courts to bring the law abreast of present-day standards of wisdom and justice.... Our...[common] law cannot hope to survive by stubborn adherence to decisions written for a different world. We cannot and should not apply seventeenth and eighteenth century rules to twentieth century conditions."

These same sentiments led the Court of Appeals, in Gallagher v. St. Raymond's Roman Catholic Church22, to "purify our law of what has, with the passage of time, become a most anomalous exception to the general common-law rule of due care," which held that there was no duty to illuminate an exterior stairway "with artificial light, in the absence of defective conditions, or conditions of peculiar danger, that may call for special warning."23 The court held that the owner of a public building is under a duty to keep exterior steps illuminated so as to provide the public with a safe means of ingress and egress. The court explained how it reached its result.

It is saying the obvious but it bears repetition that whether a society will tolerate a particular course of conduct is, to a large measure, dependent upon the development of society at the particular moment when the courts are called upon to enunciate a proper standard of care. We can conceive of no reason why at the present time the owner of a public building should not be required to light the exterior of his building at those times when it is open to the public. The traditional rule no longer expresses a standard of care which accords with the mores of our society. The public is entitled to a safe and reasonable means to enter and exit from an open public building. In this day and age, this should mean a lit path or stairway to the street...Few public buildings are now without exterior illumination. People, especially the elderly, should not be required to risk their health or lives groping in the dark hoping to find a handrail by which they might guide themselves in safety to the public sidewalk. The burden on the owner for taking this simple precaution, in terms of the cost of electricity and maintenance, is slight compared to the injuries or worse that can be avoided.24

In Buckley v. City of New York25, the Court of Appeals abolished the fellow-servant rule under which an employee, injured by a fellow employee in the workplace, has no recourse against the employer in respondeat superior, stating: "The rule had its birth in the 19th century, was severely crippled with the advent of workers' compensation [where the rule is no defense to a Worker's Compensation claim], and was dealt an almost fatal blow in this state in Poniatowski. Today, in rejecting this rule entirely, we inter its remains." The court pointed out that "[w]hile the longevity of a rule requires that its re-examination be given careful scrutiny, it does not demand that its effect be given permanence. The continued vitality of a rule of law should depend heavily upon its continuing practicality and the demands of justice, rather than upon its mere tradition."26

Woods v. Lancet27, a medical malpractice action, is another example of how "the common law has been molded and changed and brought up-to-date." In Woods, a 1951 case, the infant plaintiff was in his mother's womb during the ninth month of her pregnancy when, through the negligence of defendant, he sustained serious injuries that caused him to be permanently disabled. Defendant moved to dismiss the complaint as not stating a cause of action, taking the position that its allegations, though true, gave the infant no right to recover damages under then prevailing New York law. Special Term granted the motion and dismissed the suit, citing Drobner v. Peters28, a case indistinguishable from Woods. The Appellate Division affirmed, with one justice voting for reversal with an opinion in which he described the obvious injustice of the rule, noted a decisional trend (in other states and Canada) toward giving relief in such cases, and suggested that since Drobner was decided 30 years ago by a divided vote, the Court of Appeals might well re-examine it.

Court of Appeals Judge Charles Desmond, writing for the majority in Woods, stated the issue before the court as follows: "It will hardly be disputed that justice (not emotionalism or sentimentality) dictates the enforcement of such a cause of action. The trend in decisions of other courts, and the writings of learned commentators, in the period since Drobner was handed down in 1921, is strongly toward making such a recovery possible. The precise question for us on this appeal is: Shall we follow Drobner, or shall we bring the common law of this state, on this question, into accord with justice?"29

Justice trumped outmoded precedent, and the court reversed the judgment below, with Desmond borrowing the following colorful passage "from our British friends": "When the ghosts of the past stand in the path of justice clanking their medieval chains, the proper course for the judge is to pass through them undeterred."30 Judge Edmund Lewis dissented. Although he agreed with the majority that "prenatal injury to the child should not go unrequited by the one at fault," he believed that the change in the law should come from the Legislature.31

Composition of Court

Finally, neither the closeness of a vote in a precedential case nor a change in the membership of the court furnishes any justification for reopening a settled legal controversy. "The authoritative force of a decision as a precedent in succeeding cases is not determined by the unanimity or division in the court. The controversy settled by a decision in which a majority concur should not be renewed without sound reasons..."32 And, as Breitel put it, "the accident of a change of personalities in the judges of a court is a shallow basis for jurisprudential evolution."33 "Only a major reappraisal by the court, rather than the accident of a change in its composition, would justify the overruling of [a] precedent."34


1 People v. Bing, 76 N.Y.2d 331, 337-338 (1990).

2 Danann Realty v. Harris, 5 N.Y.2d 317, 322 (1959).

3 J.A. Preston Corp. v. Fabrication Enterprises, 68 N.Y.2d 397, 407 (1986); People v. Olah, 300 N.Y. 96, 101 (1949)("no opinion is an authority beyond the point actually decided and no judge can write freely if every sentence is to be taken as a rule of law separate from its association").

4 Bing, supra, 76 N.Y.2d at 338; Helvering v. Hallock, 309 U.S. 106, 119 (1940).

5 Ibid.

6 Buckley v. City of New York, 56 N.Y.2d 300, 305 (1982).

7 People v. Hobson, 39 N.Y.2d 479, 487 (1976).

8 Ibid.

9 Woods v. Lancet, 303 N.Y. 349, 355 (1951).

10 The Nature of The Judicial Process, 152 (Yale Univ. Press 1921)(four lectures at Yale Law School by Benjamin N. Cardozo, then Associate Judge of the New York Court of Appeals, published in a book that is now considered a classic of judicial analysis, describing how judges arrive at their decisions).

11 Id., at 149

12 Matter of Eckart, 39 N.Y.2d 493, 499 (1976).

13 People v. Hobson, 39 N.Y.2d 479, 489 (1976).

14 Woods v. Lancet, supra, 303 N.Y. at 354-355; Rumsey v. New York & N.E. R.R., 133 N.Y. 79, 85 (1892).

15 Hobson, supra, 39 N.Y.2d at 488; Illinois Brick v. Illinois, 431 U.S. 720, 736 (1977).

16 Eckart, supra, 39 N.Y.2d at 499.

17 Eckart, supra, 39 N.Y.2d at 499.

18 Hobson, supra, 39 N.Y.2d at 488.

19 Eckart, supra, 39 N.Y.2d at 499 ("Some precedents are more durable than others").

20 Woods, supra, 303 N.Y. at 354.

21 11 Misc.2d 312, 317 (Sup. Ct., Kings Co. 1957).

22 21 N.Y.2d 554 (1968). The successful plaintiff was represented by Benjamin H. Siff, the originator of this column in December 1971 and a founder of Siff & Newman.

23 Id., at 556, citing McCabe v. Mackay, 253 N.Y. 440, 442 (1930).

24 Id. 21 N.Y.2d at 558.

25 56 N.Y.2d 300 (1982).

26 Id., 56 N.Y.2d at 304-305; Poniatowski v. City of New York, 14 NY2d 76 (1964).

27 303 N.Y. 349, 354 (1951).

28 232 N.Y. 220 (1921).

29 303 N.Y. at 355.

30 303 N.Y. at 355.

31 303 N.Y. at 357 (dissent).

32 Semanchuck v. Fifth Avenue & 37th St. Corp., 290 N.Y. 412, 420 (1943).

33 Hobson, supra, 39 N.Y.2d at 491.

34 Simpson v. Loehmann, 21 N.Y.2d 305, 314 (1967)(Breitel, J., concurring opinion).

Previously published in the New York Law Journal

Disclaimer: This Alert has been prepared and published for informational purposes only and is not offered, nor should be construed, as legal advice. For more information, please see the firm's full disclaimer.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

In association with
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.