Stare Decisis
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The legal term stare decisis means that juries are required to respect the precedent established by prior decisions. The phrase originates from the Latin phrase stare decisis et non quieta movere ("to stand by decisions and not disturb the undisturbed"). In modern legal usage the term is general defined as "to stand by that which is decided." In other words, whenever a legal point has been settled, a precedent has been established and should not be departed from.
However, the doctrine of stare decisis must not always be relied upon. Legal history is replete with instances in which decisions are overturned, either as the result of an initial hasty decision, or decisions that are contrary to basic principle. Yet any legal party urging the overruling of a precedent faces a difficult task, dependent upon the age of the precedent, the extent to which there is reliance upon that precedence, and its consistency (or inconsistency) with other rules of law.
Most of the time, a court will cite state decisis when it believes an issue to have been previously brought before the court and a satisfactory ruling issued. In practice, stare decisis binds lower courts to decisions from higher courts within the same jurisdiction. Any lawyer must therefore know a court's hierarchical ranking in order to apply or challenge the doctrine of stare decisis in a case.
The first thing to be understood about stare decisis is, in the opinion of this writer, that it is a general principle of English and American common law, but that, in terms of its specific applications, it is a principle often hedged and qualified. In The Nature of the Judicial Process, Supreme Court Justice Benjamin Cardozo gave a partial defense of binding judicial precedent. At the time that he wrote, 1921, the principle was, in America, under attack; there were those that felt that the rule should be abandoned altogether. Cardozo argued that "adherence to precedent should be the rule and not the exception" and noted that total abandonment of the principle would place an intolerable burden on the work of judges. However, he also suggested that utilization of stare decisis should be somewhat curtailed because "a rule, after it has been duly tested by experience, has been found to be inconsistent with the sense of justice or with social welfare, there should be less hesitation in frank avowal and full abandonment".
Cardozo's statements illustrate three things about stare decisis:
- Stare decisis is by no means an absolute principle of jurisprudence; certain courts in certain cases can choose to recognize and follow precedent or they can choose not to
- Stare decisis involves certain practical questions, judicial case load for example, that are essentially extraneous to the legal merits of a given case or set of cases
- Stare decisis must, perforce, be limited in usage because of the necessity that the law be able to accommodate itself to changing social mores and norms
Stare decisis carries a natural limitation; judicial interpretation of precedent is more inherently vague than judicial interpretation of law in the form of a legislative enactment, i.e., statutory law. As Hart notes, legal rules can be extracted both from statutes and precedents, but in the process of this extraction from the latter, unlike the former, "there is no authoritative or uniquely correct formulation of the rules so extracted." He goes on to note that the conventional wisdom with respect to the judicial interpretation of statutes is that it is a purely deductive process, while judicial interpretation of case law precedent involves both inductive reasoning, the extraction of a rule, and deductive reasoning, the application of that rule to the case at hand. The more convoluted logical process that goes into common law reasoning renders the outcome more vague than the reasoning that goes into construing a statute. This constitutes an intellectual constraint on the use of stare decisis.
The use of stare decisis also faces numerous practical constraints. In the most simple way in which stare decisis operates, where a court of last instance--a Federal or a State Supreme Court--is dealing with a precedent set by itself at an earlier point in time, that court can simply refuse to obey stare decisis and reverse itself. In what has been perhaps the most famous modern US instance of this type of judicial departure from stare decisis, the United States Supreme Court, in Brown v. Board of Education, in 1954, overturned the "separate but equal" language of Plessy v. Ferguson, a prior decision of the same Court that had stood since 1896 . Any court can reverse its own decisions or the decisions of courts below it in the legal hierarchy, however, courts, quite apart from stare decisis itself, have a natural tendency to avoid doing this; there is an almost universal feeling among jurists that legal consistency is of positive value and ought to be preserved. Consequently, decisions that go against the grain of stare decisis are often highly caveated and given the most narrow application possible.
Stare decisis, of course, is binding on lower courts with respect to honoring the precedents set by a higher court. A Federal District Court or Circuit Court of Appeals, for example, cannot baldly refuse to honor a precedent set by the Federal Supreme Court. To allow such a thing would essentially vitiate in toto the principle of appellate review.But in practice, stare decisis, is fairly malleable. This is so because the law is a creature of quibbles and quiddities. A judge who is determined not to follow precedent-and this occurs very often in common law reasoning-can argue over the specifics of the application of a precedent to the case he is dealing with. He may say, "Yes, the prior decision says this about a given case, but the case I am adjudicating, while apparently resembling it, is essentially different." This is probably the most frequent way in which stare decisis (or what we might call "apparent" stare decisis) fails to operate in practice.Of course the judge has to justify why precedent does not cover the case he/she is adjudicating and, when push comes to shove, the court of next instance can overrule her/him, but many times lawyers have filed briefs citing previous cases only to be told by the judge that those cases are irrelevant to the matter at hand. Stare decisis is thus a more shadowy and uncertain thing than one might expect.
Another limitation on stare decisis is the will of the legislative branch. There are certain constitutional situations in which the legislative branch can overrule or set aside certain judicial decisions. We saw the idea of doing so being bruited about in Florida after the last presidential election when Republican leaders of the Florida legislature were talking about passing legislation that would nullify the decision of their own state's Supreme Court with respect to the vote recounts. This did not happen because the US Supreme Court stepped in and, in doing so, produced the outcome that the leaders of the legislature desired. The malleability of stare decisis, coupled with the fact that it can be over- turned in a number of ways, makes it, in the words of Walsh and Hemmens, "not an inflexible doctrine, but one which is merely a general rule".
There is, among practicing judges, a certain psychological component that militates in favor of letting precedent stand. Justice Traynor, who was a highly respected jurist in the California court system, once spoke of the "occupational caution of judges [that] makes them reluctant to take the initiative in overruling a precedent whose unworthiness is concealed in the aura of stare decisis". Traynor was making a claim here that there exists a tendency to err on the side of caution among practicing jurists. There are those who would claim that, over the last thirty years or so, the very opposite tendency has been more prevalent. But Traynor's statement, in my opinion, has a certain natural plausibility. Lawyer's training, by its very nature, inculcates respect for precedent. Moreover, except in certain cases that are of the nature of emotionally charge cause celebres, following precedent is "safer" for a sitting judge. If the lower court judge overturns precedent, then he has a greater risk of being overturned on appeal, than he will have if he follows precedent.