Stare decisis and the rule of law: a layered approach.

Author:Waldron, Jeremy

Stare decisis remains a controversial feature of the legal systems that recognize it. Some jurists argue that the doctrine is at odds with the rule of law; others argue that there are good rule-of-law arguments in favor of stare decisis. This Article considers one possible good rule-of-law argument. It suggests that we should approach stare decisis in a layered way, looking at what the rule of law requires of the various judges involved in the development of a precedent. One rule-of-law principle, the principle of constancy, counsels against lightly overturning such precedents as there are. But that is not in itself an argument for stare decisis since it presupposes that precedents have already been created. However, there is another principle, the principle of generality, which requires all judges to base their decisions on general norms and not just leave them as freestanding particulars. A third principle, the principle of institutional responsibility, requires subsequent judges not to give the lie to the use by precedent judges of certain general norms to determine their decisions. And finally, the fundamental principle of fidelity to law requires the precedent judge to approach her decision as far as she can by trying to figure out the implicit bearing of such existing law as there is on the case in front of her. Together, these principles make up a layered case--not an absolute case, but a strong and productive case--for stare decisis.


In an article published in 1987, Fred Schauer made an interesting suggestion, which I think opens the prospect of a better understanding of stare decisis than we have had hitherto. He said this:

An argument from precedent seems at first to look backward. The traditional perspective on precedent ... has therefore focused on the use of yesterday's precedents in today's decisions. But in an equally if not more important way, an argument from precedent looks forward as well, asking us to view today's decision as a precedent for tomorrow's decisionmakers. Today is not only yesterday's tomorrow; it is also tomorrow's yesterday. (1) Disappointingly, Schauer did not do much with this. But it ought to be a promising perspective. We are familiar, for example, with the ways in which people become more cautious about their everyday decisions when they are worried about "setting a precedent." (2) It is less easy to see how Schauer's perspective helps us figure out the basis of precedent without already assuming the principle. But it is worth trying.

In this Article, I am going to use the forward-looking perspective to explicate the relation between stare decisis and the rule of law, one of our most important ideals. (I will say a little more about what "the rule of law" means in Part I, but for the moment let us say that it conveys an ideal of governmental power and discretion being exercised and constrained within a framework of rules. (3)) I believe that we are unlikely to make much progress in our understanding of stare decisis unless we begin by focusing on the reasoning of the judge whose decision is going to be used as a precedent (I will call her the "precedent judge," or often just Jp). Are there any rule-of-law constraints on what J p does and the way she reasons to a conclusion in the case in front of her that affect the position of a "subsequent judge" (Js) in a manner that looks something like the operation of a principle of stare decisis? Once we have a sense of this, we can go on to consider any additional rule-of-law constraints that apply specifically to the subsequent judge, Js, and others in the legal system.

The idea is to consider stare decisis in terms of layers of justification or justificatory considerations. Some considerations apply to Jp, some apply to Js in light of the considerations that apply to Jp, some require Js to take notice of Jp's decision in his own decisionmaking, some require Js not to lightly repudiate the principle behind Jp's decision by replacing it with a decision of his own (a decision that he expects to also function as a precedent), and so on. In each layer, we will see how different considerations of the rule of law can be applied to this issue.


    We really need a justification for stare decisis. It is not something we're entitled to neglect on the ground that it is too obvious to need spelling out. Many respected jurists oppose the principle. And its costs are pretty evident. There are costs in terms of the injustice or inefficiency of bad decisions. C might have won his case against D, had the court not been constrained to follow the principle set forth in A v. B. That would have been better for C and maybe better (in terms of justice or efficiency) for society as a whole, if we assume that the court in C v. D, had it been unconstrained by stare decisis, could have improved on A v. B. There are also process costs--the immense effort that has to be invested by counsel for C and D, not to mention the court in C v. D, to unearth all the relevant precedents and construct laborious arguments about what they mean, whether they can be distinguished, whether C v. D is a rare case in which they ought to be overridden, and so on. All this energy might have been better devoted to considering the just or efficient settlement of the dispute between C and D on its merits. So justifying stare decisis is not just a matter of saying a few things in its favor during an after-dinner speech. It is a matter of showing why costs like the ones just mentioned are worth bearing.

    Let's begin with the state of play. Our jurisprudence is cluttered with a haphazard variety of considerations adduced to justify stare decisis. They include the importance of stability, respect for established expectations, decisional efficiency, the orderly development of the law, Burkean deference to ancestral wisdom, formal or comparative justice, fairness, community, integrity, the moral importance of treating like cases alike, and the political desirability of disciplining our judges and reducing any opportunity for judicial activism. (4) The justification of stare decisis is a field to which many contributions have been made, but to which little system has been brought.

    I, too, will be less than systematic in this Article and certainly less than comprehensive. I don't want to consider everything that can be said or has been said in favor of stare decisis. My contribution is to consider a subset of justificatory considerations that fall under the heading of "the rule of law." The rule of law requires people in positions of authority to exercise their power under the authority, and within a constraining framework, of public norms (laws) rather than on the basis of their own preferences or ideology; the framework of public norms (laws) should provide a basis of legal accountability for the power that they exercise. It requires also that the laws be the same for all and that they be accessible to the people in a clear, public, stable, and prospective form. It requires finally that penalties be imposed on people by the state only through impartial legal proceedings, and that people have access to the courts to settle their disputes and to hold the government accountable. (5) Is there anything in the idea of the rule of law that requires courts to follow precedent? Are there any reasons among the reasons commonly adduced for stare decisis that we can rightly regard as rule-of-law reasons? Or is the rule of law neutral on the matter, or perhaps even opposed to stare decisis?

    Sometimes people say that we should follow precedent because we are no wiser than our ancestors. It is a matter of epistemic humility, "the general bank and capital of nations, and of ages," and so on. (6) This may or may not be a compelling justification, but even if it is, it has little to do with the rule of law. The same can be said about justifications that point to such things as agenda limitation, decisional efficiency, and system-legitimacy. (7) These are all interesting. Maybe they are important, but they are not rule-of-law justifications. So I put those arguments aside. Other justifications that are adduced for stare decisis do resonate with rule-of-law ideas: the quest for constancy and predictability in the law, and the importance of generality and treating like cases alike. Those are the justifications I shall consider. There will be some discussion of predictability in Part II, but most of my discussion (in Parts III and following) focuses in the first instance on the rule-of-law principle of generality--especially generality understood as a constraint on the decisionmaking of the precedent judge and the impact of that constraint on subsequent judicial decisions. In Parts III and IV, I argue that the rule-of-law constraint of generality is not the same principle as the one that commands us to treat like cases alike. It is not just about consistency. Instead, it is a principle that commands judges to work together to articulate, establish, and follow general legal norms. Only after developing this theme of generality do I circle back (in Part V) to the importance of constancy and calculability in the law.

    Why am I interested in this subset of reasons for stare decisis? Partly, it is born of my interest in the rule of law as a political ideal. Teaching the subject year after year, I am struck by how little there is on the significance of stare decisis for the rule of law. Apart from some inconclusive discussion in the later work of F.A. Hayek, (8) it is not addressed anywhere in the modern rule-of-law canon: Fuller, Raz, Bingham, et cetera. (9) I would rather like to fill that...

To continue reading