[Stare decisis] is a maxim among ... lawyers, that whatever
has been done before may legally be done again: and therefore they
take special care to record all the decisions formerly made against
common justice and the general reason of mankind.
— Jonathan Swift, Gulliver’s Travels.
How stare decisis Subverts the Law
2000 June 10
One of the most important doctrines in Western law is that of stare
decisis, a Latin term of art which means "to stand by decided cases;
to uphold precedents; to maintain former adjudications".
In modern jurisprudence, however, it has come to take on a life of its
own, with all precedents being presumed to be well-founded, unbiased legal
decisions, rather than political decisions, and presumed to have both the
authority of the constitutional enactments on which they are based, plus
that of the precedents on which they are based, so that later precedents
are presumed to be more authoritative than earlier ones.
The doctrine also tends to give great weight to the opinion in the case,
even to the point of treating the opinion as though it was law, even
though only the order and findings have the actual force of law, and only
in that case, and an explanation of how the decision was reached is only dictum,
or commentary. This means that a poorly-worded opinion can define a set of
legal positions that exceed the bounds of the underlying constitutional
enactments, and become the basis for future precedents, as though they
were constitutional enactments themselves. The problem is exacerbated by
the failure of judges to clearly delineate the boundaries between edict
The doctrine tends to disfavor legal argument that precedents were
wrongly decided, especially if they are precedents established at a higher
level in the appeals hierarchy, and to demand the litigants "distinguish"
their cases from adverse precedents, arguing that those precedents do not
apply to the present case because of elements that make it different from
the cases on which the precedents were established. This can be very
difficult to do if there are a great many recent cases on the same issues
which cover most of the possibilities.
The situation can be made more difficult by the rules of most courts
which limit the length of briefs the litigants may file. In working
backward through a long line of wrongful precedents, a litigant can reach
the length limit before the argument can make it back to the foundations
where the chain of precedents began to drift away from its authority in
the constitutional enactments.
The situation can be illustrated by the Venn diagram in Figure 1, in
which the first set A represents the set of legal positions consistent
with the Constitution, and the points outside the circle represent
unconstitutional positions. It is noted that the boundary of the set is
fuzzy, representing the ambiguity of interpretation at the boundary. The
central point B' represents a court decision whose opinion defines a set
of legal positions consistent with it, shown by the elliptical set with
the letter B at the top, but a portion of that set extends beyond the
bounds of A. The opinion in the next decision C' also falls within A and
defines yet another region C of consistent positions, but which extends
beyond both A and B. Decision D' falls within C, but not A or B, and
further defines a consistency set that extends beyond A, B, and C. The
Decision E' doesn't lie within any of the regions defined by the previous
precedents, but its region of consistency overlaps D and barely C, the
kind of situation that might result from a legal argument that reaches to
get a political decision not based on precedent. Finally, the last
decision F' is based on E defines consistency set F but lies entirely
outside A, B, C, and D.
The problem for jurisprudence, especially constitutional jurisprudence,
is how to get back within A when one's opponent's position is supported by
F and one cannot distinguish precedents taking the argument back to A
within the brief page limits. It may be almost impossible unless or until
one can get the case to the Supreme Court, which can ignore and reverse
its own precedents, but which can take only about 75 cases a year, and is
reluctant to issue sweeping opinions that can cover a large number of
cases that might otherwise deserve to be granted certiorari, but which
will never make it because the litigants are discouraged from making
fundamental arguments that might work with the Supreme Court but which
would be disfavored by lower courts.
It is difficult to estimate how many unconstitutional legislative
provisions are adopted each year by Congress, but a plausible number is
more than 20,000, or about as many as the number of bills introduced each
year. There is simply no way that the federal courts can handle all the
cases that might arise under that many provisions. They are almost forced
to rely on the presumption of constitutionality of statutes, but members
of Congress are increasingly reluctant to restrain themselves from
adopting legislation they know to be unconstitutional, but which is
supported by some of their constituents, and passing the duty to the
federal courts of striking legislation that should never have been passed
in the first place.
The way stare decisis is supposed to be used is indicated by the
definition of it in Bouvier's Law Dictionary of 1856, which is
closer to original practice and intent:
Stare decisis. To abide or adhere to decided cases.
2. It is a general maxim that when a point has been settled by
decision, it forms a precedent which is not afterwards to be departed
from. The doctrine of stare decisis is not always to be relied upon, for
the courts find it necessary to overrule cases which have been hastily
decided, or contrary to principle. Many hundreds of such overruled cases
may be found in the American and English books of reports. Mr. Greenleaf
has made a collection of such cases, to which the reader is referred. Vide
1 Kent, Com. 477; Livingst. Syst. of Pen. Law, 104, 5.
This indicates that the way stare decisis is supposed to be used is to
define the boundaries of the constitutional enactments, as shown in Figure
2, where the decisions B' ... L' lie on the fuzzy boundaries of the region
of legitimacy A and sharpen those boundaries. This is accomplished by
opinions that do not define a set of consistent propositions that extend
beyond A. That is, every judge is careful to anticipate all the ways the
words of his opinion might be misconstrued to support decisions beyond
what is authorized by the constitutional enactments, and in particular,
There would appear to be only two ways out of our present predicament:
Either the people must start electing different members of Congress, and
demand that they strictly comply with the Constitution, or else the
courts, especially the Supreme Court, need to start issuing sweeping
opinions which overturn past precedents and strike down entire blocks of
However, the drift away from constitutional legitimacy represented by
Figure 1 is not just the result of incompetence or confusion. There is a
faction which has tended to dominate the federal government, especially
during most of the 20th century, which has deliberately sought to extend
precedents beyond the bounds of original constitutional understanding. It
has done this by carefully selecting cases against weak or inadequately
represented defendants, appealing only those cases they are sure they will
win, and framing the arguments so that the judges often don't have a
choice that is constitutional, but must choose between two
unconstitutional positions. Ordinarily this is supposed to be guarded
against by constitutionally protective parties filing amicus curiae
briefs to argue a strict constructionist position, but such briefs are not
always filed in important cases, or are often ignored by the court.
The Supreme Court, beginning with the decision in United
States v. Lopez, 514 U.S. 549 (1995), and continuing in 2000
with several decisions like United
States v. Morrison, Docket 99-5 and Jones
v. United States, Docket 99-5739, which roll back the federal
criminal legislation based on the Commerce Clause, is nevertheless still
unwilling to issue sweeping opinions, but prefers to rely on narrowly
constructed opinions that have the effect of introducing confusion and
conflict into the system of precedents, perhaps in the hopes that lower
courts will seize on them to create still more conflicts, which the
Supreme Court will then only have to decide among, without drawing as much
controversy to themselves as they would if they issued sweeping opinions.
By treating court opinions as though they are general law, and not just
law for a particular case, we become accomplices in delegating legislative
powers to judicial officials, which is forbidden by Art. I Sec. 1 of the
U.S. Constitution and similar clauses of state constitutions, which
delegate legislative powers exclusively to the legislative branch, and
allow for no delegation of legislative power to other branches.
There is a fundamental logical problem with stare decisis as it
is currently practiced, which is that it is a logically separate system of
propositions that is independent of, and potentially inconsistent with,
constitutional enactments. One who takes an
oath to uphold the written constitution is bound to ignore precedents in
conflict with it, and to rest decisions strictly on propositions that are
logically derived from constitutional enactments, considering precedents
only where they sharpen ambiguities in the language of the written
enactments. To treat precedents as superior to constitutional enactments
is to introduce contradictions into the law, and in any system of logical
propositions, acceptance of a single contradiction accepts all
contradictions, rendering every proposition logically undecidable.
Contrary to the view of some judges, the law must be logical, or it is not
There are two variants on the doctrine of stare decisis. The
problem we have discussed here is with the strong form, which treats
precedents as binding. However, there is a weaker form, which
treats precedents as merely persuasive. In this second variant, a
dissenting opinion could be more persuasive than the prevailing opinion,
if the person citing it agreed with it. In this variant, precedent becomes
merely a convenient way to save time and words by citing the reasoning in
another case, saying "My reasoning is similar to that", and nothing more.
Historically, what came to be treated as binding started as persuasive.
Returning to treatment of precedents as merely persuasive would solve the
problem discussed here, but history shows us that judges are prone to
drift back to treating them as binding unless some corrective mechanism is
instituted to prevent it. Finding such a check would then be an essential
component of any lasting reform.
Judge Alex Kozinski opines in Hart v. Massanari,
precedent at common law thus resembled much more what we call persuasive
authority than the binding authority which is the backbone of much of the
federal judicial system today. The concept of binding precedent could
only develop once two conditions were met: The development of a
hierarchical system of appellate courts with clear lines of authority, and
a case reporting system that enabled later courts to know precisely what
was said in earlier opinions. See note 21 supra. As we have seen,
these developments did not come about-either here or in England-until the
nineteenth century, long after Article III of the Constitution was
Stare decisis is the way judges seek the safety of the herd. We
need to demand they exhibit more courage, and return to fundamental
principles, resorting to stare decisis only when the positions lie
on the fuzzy boundary of the region of legitimacy.
Campbell Black, A Law Dictionary, 2nd ed., New York: West Pub.,
Bouvier, A Law Dictionary, Revised Sixth Edition, 1856.
Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. &
Pub. Pol'y 23, 24 (1994).
Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 Ave
Maria L.R. 1 (2007).
5. Alex Kozinski, Hart