Common law principles and judicial deviation from precedent

¶ … Environment of Business

The term "common law" refers to laws that are based on general legal principles and that derive from custom. In addition, the term "common law" refers to that body of law that has developed in the court systems, in situations where courts have been asked to resolve issues unaddressed by statutes. In this way, the common law can be said to be judge-made. In contrast, the term "statutory law" refers to those laws that have been written by legislators. They are formal, written laws. Where there is a statute, it is the applicable law, even if it differs from the law that would have been in effect under the common law. However, in most states, where there is no statute, the common law determines the outcome of a controversy.

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Although courts generally adhere to precedent, they will deviate from the rule of stare decisis in situations where it would be unjust to do otherwise. One way for a court to determine whether or not a decision would be just is to look at changing social norms. For example, the freedom of speech previously extended to things that are now considered prohibited "hate speech," but not to certain images that were considered obscene. Now, that freedom covers previously obscene images, but permits bans on hate speech. Another reason for a court to overrule a previous decision is if it has been provided with evidence that the decision is unsound. For example, the decision in Brown v. Board of Education overturned Plessy v. Ferguson, not because American social norms had decreed that the races were equal, but because Marshall had the evidence to demonstrate that separate was not equal.