STARE DECISIS

[Latin, Let the decision stand.] The policy of courts to abide by or adhere to principles established by decisions in earlier cases.

In the United States and England, the common law has traditionally adhered to the precedents of earlier cases as sources of law. This principle, known as stare decisis, distinguishes the common law from civil-law systems, which give great weight to codes of laws and the opinions of scholars explaining them. Under stare decisis, once a court has answered a question, the same question in other cases must elicit the same response from the same court or lower courts in that jurisdiction.

The principle of stare decisis was not always applied with uniform strictness. In medieval England, common-law courts looked to earlier cases for guidance, but they could reject those they considered bad law. Courts also placed less than complete reliance on prior decisions because there was a lack of reliable written reports of cases. Official reports of cases heard in various courts began to appear in the United States in the early 1800s, but semiofficial reports were not produced in England until 1865. When published reports became available, lawyers and judges finally had direct access to cases and could more accurately interpret prior decisions.

For stare decisis to be effective, each jurisdiction must have one highest court to declare what the law is in a precedent-setting case. The U.S. Supreme Court and the state supreme courts serve as precedential bodies, resolving conflicting interpretations of law or dealing with issues of first impression. Whatever these courts decide becomes judicial precedent.

In the United States, courts seek to follow precedent whenever possible, seeking to maintain stability and continuity in the law. Devotion to stare decisis is considered a mark of judicial restraint, limiting a judge's ability to determine the outcome of a case in a way that he or she might choose if it were a matter of first impression. Take, for example, the precedent set in roe v. wade, 410 U.S. 113, 93 S. Ct. 705, 35 L. Ed. 2d 147, the 1973 decision that defined a woman's right to choose abortion as a fundamental constitutional right. Despite the controversy engendered by the decision, and calls for its repudiation, a majority of the justices, including some conservatives who might have decided Roe differently, have invoked stare decisis in succeeding abortion cases.

Nevertheless, the principle of stare decisis has always been tempered with a conviction that prior decisions must comport with notions of good reason or they can be overruled by the highest court in the jurisdiction.

The U.S. Supreme Court rarely overturns one of its precedents, but when it does, the ruling usually signifies a new way of looking at an important legal issue. For example, in the landmark case brown v. board of education, 347 U.S. 483, 74 S. Ct. 686, 98 L. Ed. 873 (1954), the Supreme Court repudiated the separate-but-equal doctrine it endorsed in plessy v. ferguson, 163 U.S. 537, 16 S. Ct. 1138, 41 L. Ed. 256 (1896). The Court ignored stare decisis, renouncing a legal precedent that had legitimated racial segregation for almost sixty years.

further readings

Brewer, Scott. 1998. Precedents, Statutes, and Analysis of Legal Concepts. New York: Garland.

MacCormick, D. Neil, and Robert S. Summers. 1997. Interpreting Precedents: A Comparative Study. Aldershot; Brookfield, Vt.: Ashgate/Dartmouth.

cross-references

Case Law; Judicial Review.

STARE DECISIS

STARE DECISIS is the principle of deciding judicial controversies on the basis of precedent. It is a principle of the common-law legal systems that distinguishes them from civil-law systems. Adherence to precedent, following the decision rules and reasoning set out in earlier similar cases, is frequently cited as an attribute that gives consistency and predictability to the law and that ensures political stability. However, assumptions concerning the significance and impact of adherence to stare decisis have been subjected to serious logical and empirical challenges. The continuing controversy over the scope and significance of stare decisis has served to focus greater analytical and empirical attention on the total constellation of factors that may influence judicial decision making.

BIBLIOGRAPHY

Kairys, David. "Legal Reasoning." In The Politics of Law: A Progressive Critique. Edited by David Kairys. New York: Pantheon Books, 1982.

Llewellyn, Karl N. The Common Law Tradition: Deciding Appeals. Boston: Little, Brown, 1960.

Rantoul, Robert, Jr. "Oration at Scituate: Delivered on the Fourth of July, 1836." In Perry Miller, ed., The Legal Mind in America: From Independence to the Civil War. Garden City, N.Y.: Doubleday, 1962.

Tocqueville, Alexis de. Democracy in America. Edited by J. P. Mayer. Translated by George Lawrence. New York: Harper Perennial, 1988.

John R.Schmidhauser/c. p.

See alsoJudicial Review .

STARE DECISIS

(Latin: "to stand by decided [cases].") The doctrine of stare decisis, one of the key elements of Anglo-American common law, embodies the principle that precedents are to be followed in the adjudication of cases. The substance of the law is revealed through the decisions of courts in cases between individuals or between an individual and the government, and adherence to precedent transforms the decisions in those cases into a settled body of public law. Once an issue of law has been resolved in a case by a court of competent jurisdiction, the holding in the case is determinative of the issue for that court and subordinate courts; and it offers guidance, as well, to courts of coordinate jurisdiction. Courts proceed, as a general rule, by following and applying precedents or else by distinguishing them (that is, by showing how the facts of the instant case render the precedent inapposite). Most frequently a court faces the question of which of two or more lines of precedent to follow. The doctrine of stare decisis lends stability and predictability to the legal order, but it is not absolute: courts may dispose of precedents that are outdated, or that have undesirable consequences, by over-ruling them. The federal courts, and especially the Supreme Court, have tended in recent years to diminish the force of stare decisis in constitutional cases.

Dennis J. Mahoney
(1986)