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Stare decisis, or the principle of following precedent, is uncertain as to both its scope and its strength. With respect to its scope, there are three basic models of what it means to follow precedent.

Under the first model of stare decisis, a court follows precedent if it merely takes into account the present traces of what prior courts have done. Thus, under this model, a court is always free to decide the case before it as it believes best in terms of moral and policy considerations. To the extent that earlier decisions have induced reliance and created specific expectations, or to the extent that earlier decisions have created a claim of equal treatment of present and past litigants, to that extent the present court's judgment about what is the right decision to reach may differ from what its judgment would have been in the absence of the earlier decisions. But the present court is never required by past decisions to depart from its judgment about what is morally optimal in the present.

Under the second model of stare decisis, the present court is more constrained by earlier decisions than it would be under the first model. Under this model, the present court must construct a principle that would produce the results (not necessarily the opinions) of the earlier decisions and then decide the present case under that principle. If the earlier decisions were, in the present court's view, incorrect, then the covering principle may require the present court to reach what it believes is a morally incorrect or suboptimal decision in the case before it. For this reason, the second model is more constraining than the first.

Under the third model of stare decisis, the constraint that earlier decisions exercise over present decisions is the product of the rules laid down by the earlier courts in their opinions. In other words, under this model, the earlier courts are like legislatures. In deciding cases, they lay down rules for later courts to follow.

Normally, when courts are required to interpret a text such as a statute or a constitution, they translate the vague textual rule into a clearer one. In a subsequent case involving the same provision, the principle of stare decisis requires the court to apply the earlier court's rule reformulation of the provision as if it were the correct meaning of the provision. Thus, in cases involving interpretation of nonjudicial texts, the third model is usually the model employed, even if it is not the model employed in purely common law contexts. Sometimes, however, the courts do not translate a vague textual standard into a clear(er) rule but instead engage in common law decisionmaking under that textual standard. The Supreme Court has treated many of the individual rights provisions of the Constitution this way, a case in point being its elaboration of the term "liberty" under the due process clauses. Whenever the Court is elaborating the constitutional text in this common law manner, then the scope of precedential constraint on its decisions depends on which of the three models of stare decisis the Court adopts.

The second controversy over the principle of stare decisis concerns not its scope but its strength. When may a precedent case or cases be overruled? If the answer is that precedents may be overruled whenever the present court disagrees with them, then the second and third models of stare decisis collapse and we are left with only the first model, under which precedents need never be overruled because only their present effects must be taken into account. If, on the other hand, precedents may never be overruled, then the strength of the principle of stare decisis is infinite.

In constitutional law, proposals regarding the strength of the principle vary, from according the principle very little strength (so that the Court can always overrule its earlier decisions with which it now disagrees, and other courts and government officials may depart from Court precedents in anticipation of Court overrulings), to according the principle considerable strength, so the Court can overrule its precedents only if it believes them both wrong as interpretations and unjust or mischievous in application. On this latter view, other courts and officials cannot anticipate overrulings by the Court.

There are some proponents of the position that stare decisis should not apply at all to constitutional decisions, so that no one is bound by the Court's constitutional interpretations except in the actual cases in which the interpretations are rendered. No one advocates the opposite extreme; namely, that not even the Court can overrule its precedents—though this position would settle constitutional controversies more than the other positions regarding the strength of precedent.

Larry Alexander

(see also: Planned Parenthood v. Casey.)

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Stare Decisis (Update)

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