In the United States, in the late 20th and early 21st centuries, the concept of a U.S. court that takes into account foreign law or precedent was considered controversial by some parties. The Supreme Court is divided on this issue. This criticism is new, because the quotation of English authority was omnipresent in the early history of the United States. One of the first acts of many new state legislators was to incorporate English common law into state law. See here. Citing English cases was common in the 19th century and until the 20th century. Even in the late 20th and early 21st centuries, it is relatively uncontroversial for U.S. state courts to rely on English decisions when it comes to pure (i.e. judicial) law. Some argue that over-reliance on precedent can be problematic.

On the one hand, some precedents may have been ill-decided in which a case based on them merely continues its misinterpretation of the Constitution.19FootnoteRaoul Berger, Original Intent and Boris Bittker, 66 Ind. L.J. 723, 747 (1991) (citation omitted). Indeed, critics argue that if the Court sticks strictly to precedents, once a precedent has been established on a question of constitutional law, the only way to alter that decision is to amend the Constitution.20See, for example, Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 406–10 (1932) (Brandeis, J., deviant) (In cases, concerning the Federal Constitution, Where correction by legislative measures is practically impossible, the Court has often overturned its previous decisions.); Schmidt v. Allwright, 321 U.S. 649, 665 (1944) ([T]he condemnation of an earlier error never felt compelled to follow precedents. In constitutional cases where correction depends on amendments rather than legislation, the Court has exercised freely throughout its history its power to review the basis of its constitutional decisions. This rigidity is particularly problematic when people outside the Court begin to discuss the basic general principles underlying a precedent; Disagreements therefore seem to cause the precedent to lose its authority21FootnoteBobbitt, op. cit.

cit., note 2, p. 52. For example, when precedents violate fundamental moral principles (e.g., Plessy v. Ferguson22Footnote163 U.S. 537 (1896)). In Plessy, the court upheld the constitutionality of a Louisiana law imposing racial segregation in railroad cars, holding that separate but equal public housing did not violate Thirteenth or Fourteenth Amendment guarantees. Id., pp. 542, 550–51.), the jurisdiction of the Court`s case-law may necessarily be weakened.23Footnote Gerhardt, op. cit.

Cit. note 1, pp. 35-36. Other commentators argue that consistency, predictability, stability and neutrality are not really advantages of using precedents, as judges can choose between precedents and, to some extent, interpret precedents in accordance with their own views to implicitly overturn them; expand them; or to refine them.24FootnoteId. at 34 and 35 (The application of precedents requires their interpretation, their interpretation often implies a change, and their modification often implies an extension or reduction.); Epstein & Walker, op. cit. Cit. note 3, p. 30. Moreover, some proponents of the original meaning as a method of constitutional interpretation reject the use of judicial precedents that contradict the original meaning because they favour the views of the Court over those who ratified the Constitution, allowing erroneous interpretations of the Constitution to persist.25 FootnoteFootnote, supra note 17, pp. 769-70 (In interpreting these writings) Constitution, We can assume that the founding generation was very attached to the original and publicly shared understanding of the document. It is therefore easy to argue that the written constitution, as it is understood historically, should prevail not only over laws, but also over jurisprudence.

This argument is reinforced when one remembers that it was not clear to the founding generation that legal opinions were to play such a dominant role in determining the meaning of the Constitution.) (Footnotes omitted). In exceptional circumstances, a superior court may overturn or overturn mandatory precedents, but will often attempt to distinguish the precedent before it is repealed, thereby limiting the scope of the precedent. The Court has never felt compelled to follow precedents. In constitutional cases where correction depends on amendments rather than legislation, the Court has exercised freely throughout its history its power to review the basis of its constitutional decisions. U.S. courts of last resort recognize a rebuttable presumption against the annulment of their own prior decisions. In earlier eras, it has often been argued that this presumption does not apply if the current members of the Court believe that the previous decision was manifestly erroneous. But when the Supreme Court makes similar noises today, it is outright criticized.