Stare Decisis As A Constitutional Requirement

Abstract:     
Is the rule of stare decisis a constitutional requirement, or is it merely a judicial policy that can be abandoned at the will of the courts? This question, which goes to the heart of the federal judicial power, has been largely overlooked for the past two centuries. However, a recent ruling that federal courts are constitutionally required to follow their prior decisions has given the question new significance. The ruling, issued by a panel of the United States Court of Appeals for the Eighth Circuit, argues that stare decisis was such an established and integral feature of the common law that the founding generation regarded it as an inherent and essential limit on judicial power. Therefore, when the Constitution vested the "judicial Power of the United States" in the federal courts, it necessarily limited them to a decision-making process in which precedent is presumptively binding.

This Article challenges that claim. By tracing the history of precedent in the common law, it demonstrates that stare decisis was not an established doctrine by 1789, nor was it viewed as necessary to check the potential abuse of judicial power. The Article also demonstrates that even if stare decisis is constitutionally required, the courts are not obligated to give prospective precedential effect to every one of their decisions. Stare decisis is not an end in itself, but a means to serve important values in a legal system. And those values can be equally well served by a system in which only some of today's decisions will be binding tomorrow.

Number of Pages in PDF File: 80

Keywords: stare decisis, precedent, anastasoff, common law, judicial power

Accepted Paper Series