Deference to Own Sovereign's Law: Stare Decisis

Abstract

Stare decisis is uniquely a part of the common law, and a necessary part. Understanding it requires fitting it into the much broader context of judicial deference to other courts’ views on the law, including the messages of Erie, reverse-Erie, and conflict of laws.

The doctrine of stare decisis came to require the lower court’s deciding questions of domestic law by trying to forecast what the highest court would decide. Applicable domestic law is what the highest court would currently hold in the instant case’s context, if that court were exercising review of issues of law under a nondeferential standard of review. This vertical stare decisis eventuated also in the lower court’s being normally bound by the prior performance of that divination task by the higher courts in the direct line above it in the judicial pyramid. Moreover, an appellate court is normally bound by horizontal stare decisis to its own decisions.

This understanding implies that the attempted prohibition on lower courts’ anticipating a Supreme Court overruling was ill-advised—and ineffectual. Likewise, the rumored exception that would abolish methodological stare decisis does not exist—and is unneeded.

Keywords: stare decisis, jurisprudence