 I'm Vernelia Randall, Professor Vian at Vernelia Randall with the Union Professor Emeritus from the University of Dayton School of Law. I want to talk today real briefly about why precedents shouldn't be a winning argument, mainly why we should black people and people from other oppressed groups should not make precedents an argument in abortion rights. This is not about arguing whether abortion should be legal or illegal. This is about arguing that we don't want to privilege precedent as a way of winning the argument. So precedent basically is the rule that when a judge is confronted with law from the previous cases, that they have to use that law from the previous cases in deciding the current cases unless they decide to overrule the case or distinguish the precedent. So it's based on the concept of star decisis which like cases are decided to like and higher courts are buying lower courts decision. The idea of precedent, so when we talk about higher courts binding lower courts in the same jurisdiction, what we mean is that within the state system, the state court appeals and the state supreme court bounds the state court. The supreme court of the United States only bounds state court when you're dealing with United States constitutional issues in United States federal law. If those issues are not implicated in a court decision, then the state, the supreme court of the United States doesn't bound the state supreme court. The state supreme court becomes the highest court within the state system on something that is uniquely state law. In the federal system, your trial courts is the U.S. district courts in the U.S. district courts are bound by the U.S. court of appeals. And then of course the supreme court binds the U.S. court of appeals and the U.S. district courts when those courts deal with constitutional law or federal law. Now there's our law in our case comes from three places, four places. You have this constitution, constitution of the United States in the state constitution. You have laws, statutes that are passed by the federal government and by the state. You have regulations that are adopted by agencies under the authority of the state and then you have court decisions on individual cases. Court decisions are is where the issue of a precedent comes in. The problem I have with precedent and arguing precedent is that the whole American legal system is an English based system that was designed to protect existing power structure is designed to be slow, is designed to have incremental small changes, is designed to constantly refer back to previous laws for making new laws. It implies that the legal decision making is objective. What can be more objective than saying that there was another case that's already been decided and that that controls the decision making in this particular instance? It implies neutrality. The judge is not making a decision on their own value system. They're making a decision that is a neutral decision based on previous body of work of a law and it implies that this is something a scientific and rational approach. One plus one equals two is there a case that's on point then it controls and this how more scientific and rational it be. The problem is of course that law is contextual. All law is context. Even when they talk about the you have some people who want to apply the law, want to apply the Constitution as the way it was meant to be interpreted when it was constructed. Well that was contextual and that is the clearance evidence of maintenance of a white privileged male hierarchy system because the Constitution and everything in it was designed to privilege white male landowners. Law is decision making and law is subjective. Every decision is the result of a choice between values. The more we cover that choice up in what looks to be like objective decision making, the less likely we will be to confront the underlying values that we are being asked to choose between. And finally, the precedent, the problem with precedent is that whether or not you even have precedent is affected by your access to the legal system and the quality of the lawyers that you get. I am not talking about whether or not you graduated from Yale or University of Dayton. I don't believe that. That's another discussion. I'm talking about that there is a wide range of legal analytical ability, creative analytical ability and that whether or not a person can argue for creative reasons for why a case should be overturned varies among the lawyers and so that precedent is affected by having those different quality of lawyers. The advantage of precedent as a concept is that it provides some level of certainty. Find a case on point, discussion stops, analysis stops. The argument is don't overrule the law because you have a case. We know what to expect from the law and how it's likely to be applied in our case by looking at the cases and knowing that the precedent will be applied. It provides consistency among similar cases so that you don't get a case in one jurisdiction and one court in the same jurisdiction handling a case one way and a different court in the same jurisdiction handling the case differently. Precedent allows you to provide some consistency. I prove that fairness in parenthesis, a number of the sources that I looked at talked about fairness as a reason for as an advantage although I personally don't like fairness as an idea and concept. One person's fairness is always an alternative to the person who doesn't agree with the outcome. The outcome is unfair and so I find the fairness argument to be something that I tend to try to avoid but many of the authors that I read talked about it's just an affair to have similar cases decided in the same way. Precision, principles of law are set in actual cases and so to that extent the law can become very precise and not theoretical. Flexibility, because courts can supreme court, state supreme court and state supreme court and federal supreme court can overrule cases then you have there are there's some flexibility and time saving where a principle has been established cases that have similar facts and not likely to go through the lengthy process of litigation and so you have this advantage by using precedent. The disadvantage is the rigidity. We see that in our society in a lot of places in our society where principles don't correspond to the changing circumstances. You have inflexible law, bad decisions get perpetuated because of precedent. As a black person, we have to coming from slavery and segregation in all of the cases, bad case law against us. We needed the courts to step in and overturn it and not just go along with it because it was precedent. It has some complexity to it. There's a half a million cases. It's not easy to find a relevant case law. You get these long judgments with no clear distinction between comments and the reasons for the decision. Illogical distinctions in the OE2. To get out of a precedent you have to distinguish the case a case and what you see is people. The difference between some cases can be very small and can be illogical. Maybe the biggest issue is the slowness of growth and change in society. Precedent handicaps of society from being responsive to different value systems, changing interests. I believe that instead of arguing precedent, we should argue the put our whole basis for our argument in the continuing value of a law or the need for a law. I think there can be a three-part standard. This is something that I've just been working on. It's clearly open for discussion. There may be other parts. To start off with, in a society that has large groups of people that have been disadvantaged by the law and by the society, before we make any change in any rule, we need to ask whether that rule or change in rule will have a disproportionately negative disadvantage on a protected class. I believe that race, gender, color, religion, age, disability. I only include sexual orientation and question marks because not all states currently recognize sexual orientation, but sexual orientation would be one. Again, we would accept in areas of affirmative action or remedial correction. Remedial correction is the terminology used by the international treaty on elimination of all forms of racial discrimination to say that it is not racial discrimination to undertake action that has a disproportionate negative impact on the dominant group if that action is undertaken to correct a problem. And so I think that we should have that as a factor too. So it would not be reverse discrimination to undertake a rule of change that disproportionately negatively impacts white men in order to correct employment problems that black men have undergone. Does the rule of change in rule isn't necessary to protect the interests of an individual? So the first rule is about protecting the interests of a group. The second rule is about making sure that the individual is not lost in this group discussion. So that individuals have their right protected as well. And then the final factor would be is the change or rule or change in rule necessary for the just, fair and equitable operation of the society. It seems to me that abortion rights people should make your argument along these three fact instead of arguing precedent, they should argue these three fact does changing abortion rights disproportionately disadvantage a protected class. Does changing abortion rights affect the rights and interests of the individual? Does changing abortion rights impact whether or not we will have a just fair and equitable society? For instance, will more abortion be available, but only available to people with a certain amount of money, which would make our society unjust, unfair and unequal. Okay, I, I'm happy to discuss this further on Facebook. You can email me you can go to my website racism.org you can go to Facebook. You can tweet me on Twitter. If you have something I want to try to do little synopsis like this on race and the law. And if you have a question that you'd like to see me discuss, please email it to me. Have a good day.