86 Pages Posted: 10 Oct 2009
Date Written: June 1, 1996
The doctrine of stare decisis often seems anomalous in a legal system ostensibly devoted to justice: It purports to require that courts, in the name of consistency, sometimes reach decisions they otherwise would reject as unjust. As such, stare decisis is a particular application of a more general belief that decisionmakers should strive for consistency as well as-and sometimes instead of-substantive correctness. What can justify this occasional preference for consistent decisions over correct ones?
Mr Peters explains that, in the context of stare decisis, two types of response to this question can and have been offered by courts and commentators. First, stare decisis might be defended consequentially: The beneficial results adjudicative consistency is thought to produce might be said to justify an otherwise incorrect result in a particular case. Second, stare decisis might be defended deontologically: The bare fact of consistency among different decisions might be thought to contain inherent normative value.
Mr Peters contends that deontological justifications of stare decisis necessarily fail. He examines the two extant types of deontological theory-theories that trace the force of consistency to concerns for "equality" and Ronald Dworkin's theory that consistency is demanded by a norm called "integrity"-and argues that neither can produce a nonconsequentialist normative reason for courts to follow precedent. Mr Peters concludes that stare decisis, if it is to be observed, must be observed on consequentialist grounds alone; courts must adopt a pragmatic approach to precedent that unabashedly weighs the benefits and burdens of following it.
Keywords: stare decisis, consistent decisions, correct decisions, deontological justifications, Ronald Dworkin, consequentialist grounds, equality heuristic
JEL Classification: K00, K49
Suggested Citation: Suggested Citation
Peters, Christopher J., Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis (June 1, 1996). Yale Law Journal, Vol. 105, No. 8, 1996. Available at SSRN: https://ssrn.com/abstract=1483864
By Gilat Levy
By Gilat Levy