In Defense of Stare Decisis

24 Pages Posted: 6 Dec 2010

See all articles by Michael Gentithes

Michael Gentithes

University of Akron School of Law; Chicago-Kent College of Law - Illinois Institute of Technology; New York University School of Law; Loyola University Chicago School of Law

Date Written: May 1, 2009

Abstract

The argument for a rule of stare decisis that frequently controls Supreme Court jurisprudence is often entangled with the controversial issues the Court faces when it must choose to either invoke or ignore the doctrine. But those issues distract attention from the centrality of stare decisis to democratic governments’ vitality. By taking a unique, systemic perspective this article demonstrates that stare decisis, though not a strict rule of constitutional construction, plays a vital role in the preservation of democracy. Respect for the Supreme Court’s prior decisions lends legitimacy to a body with a transitory membership. It assures citizens that the Court’s decisions are not merely the whims of Justices’ personalities, and renders the Court “strong” in the sense that it can issue decisions in the country’s most pressing controversies that both the parties and society at large consider final. I will apply this new perspective to the Court’s current stare decisis doctrine and analyze its effectiveness. Finally, I will suggest original factors that the Court should consider when applying stare decisis by looking not just backward to the decision potentially being overruled, but also forward to the decision which may replace it.

Keywords: stare decisis, precedent, Supreme Court, appellate review

Suggested Citation

Gentithes, Michael, In Defense of Stare Decisis (May 1, 2009). Willamette Law Review, Vol. 45, No. 4, p. 798, 2009, Available at SSRN: https://ssrn.com/abstract=1719592

Michael Gentithes (Contact Author)

University of Akron School of Law ( email )

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Chicago-Kent College of Law - Illinois Institute of Technology ( email )

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New York University School of Law ( email )

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Loyola University Chicago School of Law ( email )

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