Stare Decisis and the Rule of Law: A Layered Approach

Abstract

The relation between stare decisis and the rule of law was raised in the joint opinion in Planned Parenthood v. Casey. This paper explores, in a layered way, the various rule-of-law principles that affect the issue of precedent – particularly in the basic case that may be made for creating and following precedent. (This is not the only way we can think about stare decisis but it is an important way.) It looks at the rule-of-law constraints affecting the initial decision of the "precedent judge," the way in which a subsequent judge participates in upholding the generality of the precedent judge's decision, and the way in which subsequent judges are bound by rule-of-law principles of constancy once a precedent has emerged. The paper argues that it is very important to distinguish these various layers, so that the account of precedent is not question-begging. Above all, it is an implicit critique of those theories of precedent that emphasize particularistic case-to-case analogy. It argues for a more rule-oriented approach than that, on rule-of-law grounds.

Keywords: adjudication, analogy, constitutional stare decisis, courts, expectations, generality, judge-made law, precedent, rule of law, rules, stare decisis