How to Realize the Value of Stare Decisis: Options for Following Precedent

60 Pages Posted: 10 Aug 2017 Last revised: 17 Oct 2019

See all articles by Nina Varsava

Nina Varsava

University of Wisconsin-Madison

Date Written: February 10, 2017

Abstract

When courts deliberate on the implications of a precedent case in the adjudication of a new dispute, they generally frame the issue as if there are three paths through--(1) follow the precedent, (2) overrule, or (3) distinguish--without acknowledging that option number one contains its own garden of forking paths. My chief aim in this paper is to delineate and evaluate several options for following precedent. I show that we can respect the doctrine of precedent or stare decisis without committing to any one particular method. I argue further that we have good reason to refrain from endorsing any single method for following precedent, and I propose instead a variable approach--one that is sensitive to the contextual factors that make one method preferable to another. My analysis reveals the methodological challenges that courts must face if they wish to make good on the promise of stare decisis when they go about their business of following precedent. I conclude with the suggestion that we should be open to considering a no stare decisis regime; at least in some types of case, adherence to precedent comes with considerable costs and only tenuous benefits.

Keywords: Prodecure, Courts, Precedent, Stare decisis, Judicial decision-making, Common law, Legal theory, Jurisprudence, Judicial ethics, Legal ethics, Legitimacy, Equality, Comparative justice

JEL Classification: K00, K10, K15, K40, K41

Suggested Citation

Varsava, Nina, How to Realize the Value of Stare Decisis: Options for Following Precedent (February 10, 2017). 30 Yale Journal of Law and the Humanities 62 (2018), Univ. of Wisconsin Legal Studies Research Paper No. 1490, Available at SSRN: https://ssrn.com/abstract=3016053 or http://dx.doi.org/10.2139/ssrn.3016053

Nina Varsava (Contact Author)

University of Wisconsin-Madison ( email )

United States

HOME PAGE: http://law.wisc.edu/profiles/nvarsava@wisc.edu

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