Stare decisis

{{DISPLAYTITLE:''Stare decisis''}}{{law}}'''''Stare decisis''''' (pronounced stɛəri dɨˈsaɪsɨs; [[Latin]] for "stand decided") is the [[common law]] legal principle that a court is obliged to follow the precedents of superior courts (vertical ''stare decisis'') and should follow its own prior decisions (horizontal ''stare decisis''). Literally translated, it is shortening of a [[Latin]] phrase meaning once something has been decided, it should be left decided. 

Vertical ''stare decisis'' compels courts to follow the parts of the decision that form the holding (legal decision) ''ratio decidendi'' (reasons for the decision) of a higher court to which that court's decisions may be appealed (called "binding precedents"). Thus aside comments, hypothetical examples and other such ''obiter dicta'' that are contained in a judgment will not bind an inferior court (although they may be persuasive); additionally, the holdings and ''rationes decidendi'' of higher courts to which the lower court's decision cannot be appealed, as well as those of courts "at the same level" as the lower court, may also be persuasive but are also not binding. Thus, in the [[United States]] (the country where this comes up most often), a state trial court in, say, [[Pennsylvania]] is bound by the decisions of the Pennsylvania state appellate courts (because its decisions may be appealed to those courts) and by the decisions of the US Supreme Court (because its decisions may also ultimately be appealed to that court), but is not bound by the decisions of the {{wpl|United States Court of Appeals for the Third Circuit||,}} even though that court has its HQ in [[Philadelphia]], nor is it (generally speaking) bound by the decisions of the state courts of any other state (unless the case requires the court to interpret another state's law, e.g. when a {{wpl|choice of law}} provision in a contract requires that it be interpreted under [[New York]] law, but the parties have agreed for convenience's sake to litigate in Pennsylvania, thus binding a Pennsylvania court to follow the decisions of New York's highest court — not an uncommon occurrence in business). 

An interesting issue is the extent to which the highest appeal court in a jurisdiction is required to abide by its previous decisions. This principle is called horizontal ''stare decisis''. Traditionally, both the [[House of Lords]] and the [[Supreme Court of the United States]] have considered themselves bound by their earlier decisions, but there have been occasions where they have altered their positions. In the US context, ''[[Brown v. Board of Education]]'' is probably the most famous case to not apply horizontal ''stare decisis'', but so did ''[[Lawrence v. Texas]]''. In 1966, the UK House of Lords issued the Practice Statement which stated that the House of Lords would depart from precedent in certain cases where a rigid application of the law would lead to injustice and would restrict the proper development of the law.

''Stare decisis'' is a conservative force in the literal sense of the word — it preserves the ''status quo'' — but does not forbid change wholesale. ''Stare decisis'', properly applied, allows changes in the law where appropriate, and is not meant to preserve inane and archaic doctrines. It allows the law to progress at the pace of society, but no faster, and not too frequently. ''Stare decisis'' protects ''precedent'', or established law. It suggests that judicial decisions should rarely be overruled outright, and that courts should only rarely carve out exceptions to established law. Along these lines, ''Stare decisis'' bears upon the [[rule of law]]: when well-applied, it can preserve good decisions against bad actors, but when poorly applied, it can preserve bad decisions against change<ref>[https://repository.law.umich.edu/cgi/viewcontent.cgi?article=1095&context=mlr Stare Decisis and the Rule of Law: A Layered Approach] by Jeremy Waldron (2012) ''Michigan Law Review'' 111(1):1-32.</ref> (e.g., ''[[Dred Scott v. Sandford]]'', ''[[Plessy v. Ferguson]]''). 

==''Stare decisis'' in civil rights cases==
For a compelling discussion of ''stare decisis'', the Opinion of the Court, by Justices [[Anthony Kennedy|Kennedy]], [[Sandra Day O'Connor|O'Connor]], and Souter, in ''Planned Parenthood of Southeastern Pennsylvania v. Casey'', is instructive.<ref>[http://www.law.cornell.edu/supct/html/91-744.ZS.html 505 U.S. 833.]</ref> In discussing when to overrule explicitly previous law, the justices lay out a few factors for consideration. Overruling important precedent is only appropriate:
* Where doctrine has become unworkable and irrelevant, or has become needlessly obscured by a confusing line of cases. Courts should ensure that the law is accessible to practitioners and citizens alike by protecting against needless confusion.
* If society has not built or organized itself upon the precedent that the court is considering overruling. The ''Casey'' court explained its reluctance to overrule [[Roe v. Wade]] partially based upon this factor. In short, if there is a "reliance interest" in the established law, courts should be careful in overruling the decision.
* Where facts have changed. The ''Casey'' court stated that the Supreme Court was justified in overruling [[Plessy v. Ferguson]], in [[Brown v. Board of Education]], mostly because the facts of the situation had changed, and society had recognized that [[racism]] and [[segregation]] were truly [[evil]], where before it had not. Where no such ''fact change'' exists, courts should try not to overrule a decision.

These factors for considering whether or not to overrule important cases are not mandatory, but are talking points that courts should use in discussing cutting against established law. They are loosely followed, and more often invoked by dissents.<ref group=note>[[Antonin Scalia]] loved to make a mockery of this doctrine by calling it a "rule" that the Supreme Court violates, in his mind, at least five times a day (twice before lunch). His selective application of respect for precedent is discussed below. Scalia blasts the Court for overruling ''Bowers v. Hardwick'', an anti-gay decision, in his venomous dissents in [[Lawrence v. Texas]] and [[Romer v. Evans]].</ref>

==The restatements, and ''stare decisis''==
To ensure that the common law remains accessible, rather than a nebulous and ill-defined corpus, the American Law Institute codifies common law in the extremely authoritative '''Restatements of the Law'''. The ALI collects and considers different iterations of the common law from different jurisdictions, and compiles them into one volume, selecting the most useful and consistent common law doctrine where American jurisdictions differ. Sometimes the restatements can push the common law forward, by choosing to endorse the most progressive common law authority. Since the ''Restatements'', as they are called by practitioners, are uniform and well-reasoned, courts and litigants take the Restatements as ''persuasive authority'', and tend to follow the ALI's lead, as such.

An example of the Restatements as a progressive force is the doctrine of ''promissory estoppel''. Promissory estoppel functions as a kind of quasi-contract, allowing a party who justifiably relied on another party's promise to recover any losses incurred as a result of the promisor's breach, even when no written contract exists. This doctrine was rarely applied prior to its adoption in the Restatement (First) of Contracts, since many common-law courts were loathe to move away from a formalistic approach to contract law, which required a written document for any lawsuit at all.<ref>Restatement (Second) of Contracts, § 90.</ref> After the ALI endorsed promissory estoppel in its Restatement (First) of Contracts, arguing that estoppel could function to prevent a sophisticated party from abusing the naivety of an unsophisticated party, courts began to apply promissory estoppel more and more, finally gaining near universal acceptance in the mid-1900s.<ref>See Justice Cardozo's opinion in ''Allegheny College''.</ref>

The Restatement can change common law, then, but also prove just how hard it is to change the common law. If it takes the full force of the ALI and the Supreme Court to push the common law forward, it's obvious that the common law will rarely change.

==Selective ''stare decisis''==
[[Right-wing]] courts and right-wing thinkers often use ''stare decisis'' as a way to prevent the law from becoming a tool of social change. ''Stare decisis'' has been used to justify conservative viewpoints as far back as opposing [[Brown v. Board of Education|desegregation]]: the argument went, "why change the law? ''Stare decisis'' justifies keeping segregation alive." More recently, [[gay rights]] opponents advocate using ''stare decisis'' to put the brakes on what opponents see as a monolithic, evil ''[[gay rights|gay agenda]]''.  

However, right-wing courts selectively apply ''stare decisis'', proving that the ''stare decisis'' trumpet is just so much [[hypocrisy]]. The conservative-dominated 2007 United States Supreme Court had no compunction in overruling nearly 25 years of [[pro-choice]] decisions, requiring an exception to any restriction on [[abortion]] that protected the life of the mother in [[Gonzales v. Carhart]].<ref group=note>Shockingly, ''Gonzales'' overruled ''Stenberg v. Carhart'', a decision that came to the exact same conclusion barely 5 years earlier.</ref> Further, the 2007 Supreme Court sounded the trumpets of what ''may'' become a full-scale retreat from affirmative action (as defined and restricted in ''Grutter'' and ''Grantz''), only 6 years after the Court professed its wish to end the incessant court battles that this divisive topic engendered.

Sandra Day O'Connor… we miss you.<ref group=note>Sung to the tune of ''Ohio'', by Bowling for Soup: Come back to SCOTUS… it's just not the same since you went away, I bet you miss your bench-seat.</ref>

==See also==
*[[Common law]]

==References==
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==Notes==
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[[Category:United States law]]
[[Category:Latin phrases]]

Categories: United States law, Latin phrases