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INTRODUCTION
Deep clashes in values often lead to deep clashes in the doctrines of the law. The law is expressed partly by precedent, and tiuis clashes in values can affect die way in which courts use relevant precedent.2 Traditional theories of precedent assert that precedent can be followed, distinguished, or overruled.3 More sophisticated theories suggest that precedent may also be treated as mistaken.4 This Comment argues that courts also use another technique: ignoring precedent. Understanding the phenomena of ignoring precedent will foster understanding of the general theory of precedent.
This Comment defines an ignored precedent as a precedent treated by later courts as having no controlling force without any indication that the original deciding court would reach a different result. In a case where the rule of the ignored precedent would control in favor of a particular result, a litigant who cites that precedent would not persuade a later court to change its ruling.5 From the perspective of the later-deciding court, such a precedent is as effective as speaking a language that the court does not understand.6 Yet the later-deciding court is acting in good faith, attempting to apply the law as best the law can be understood as a whole.7
This Comment argues that ignoring precedent is a normal, although uncommonly used, technique for dealing with particular precedent. In the particular precedent, the result was reached because the deciding court perceived a particular value as controlling the outcome. But later courts did not see the particular value as relevant, and so the later courts ignored the rules of law - articulated or implicit - in the precedent. The precedent itself is not overruled because its underlying values are still relevant in the particular factual circumstances of the precedent itself. The precedent continues to exist, but without any influence on the law more generally.
Part I describes the way ignored precedent appears to the practicing lawyer and defines ignored precedent by comparison to other situations where precedent is treated as nonbinding. Part ? of this Comment describes the basic theory of precedent and why precedent is ordinarily considered binding. Part III considers how deciding courts bound by precedent ordinarily applied and interpreted the precedent. Part IV describes the basic techniques available for a judge...