Stare decisis

Stare decisis (pronounced stɛəri dɨˈsaɪsɨs; Latin for "stand decided") is the common law legal principle that a court is obliged to follow the precedents of superior courts (vertical stare decisis) and should follow its own prior decisions (horizontal stare decisis). Literally translated, it is shortening of a Latin phrase meaning once something has been decided, it should be left decided.

Vertical stare decisis compels courts to follow the parts of the decision that form the holding (legal decision) ratio decidendi (reasons for the decision) of a higher court to which that court's decisions may be appealed (called "binding precedents"). Thus aside comments, hypothetical examples and other such obiter dicta that are contained in a judgment will not bind an inferior court (although they may be persuasive); additionally, the holdings and rationes decidendi of higher courts to which the lower court's decision cannot be appealed, as well as those of courts "at the same level" as the lower court, may also be persuasive but are also not binding. Thus, in the United States (the country where this comes up most often), a state trial court in, say, Pennsylvania is bound by the decisions of the Pennsylvania state appellate courts (because its decisions may be appealed to those courts) and by the decisions of the US Supreme Court (because its decisions may also ultimately be appealed to that court), but is not bound by the decisions of the even though that court has its HQ in Philadelphia, nor is it (generally speaking) bound by the decisions of the state courts of any other state (unless the case requires the court to interpret another state's law, e.g. when a  provision in a contract requires that it be interpreted under New York law, but the parties have agreed for convenience's sake to litigate in Pennsylvania, thus binding a Pennsylvania court to follow the decisions of New York's highest court — not an uncommon occurrence in business).

An interesting issue is the extent to which the highest appeal court in a jurisdiction is required to abide by its previous decisions. This principle is called horizontal stare decisis. Traditionally, both the House of Lords and the Supreme Court of the United States have considered themselves bound by their earlier decisions, but there have been occasions where they have altered their positions. In the US context, Brown v. Board of Education is probably the most famous case to not apply horizontal stare decisis, but so did Lawrence v. Texas. In 1966, the UK House of Lords issued the Practice Statement which stated that the House of Lords would depart from precedent in certain cases where a rigid application of the law would lead to injustice and would restrict the proper development of the law.

Stare decisis is a conservative force in the literal sense of the word — it preserves the status quo — but does not forbid change wholesale. Stare decisis, properly applied, allows changes in the law where appropriate, and is not meant to preserve inane and archaic doctrines. It allows the law to progress at the pace of society, but no faster, and not too frequently. Stare decisis protects precedent, or established law. It suggests that judicial decisions should rarely be overruled outright, and that courts should only rarely carve out exceptions to established law. Along these lines, Stare decisis bears upon the rule of law: when well-applied, it can preserve good decisions against bad actors, but when poorly applied, it can preserve bad decisions against change (e.g., Dred Scott v. Sandford, Plessy v. Ferguson).

Stare decisis in civil rights cases
For a compelling discussion of stare decisis, the Opinion of the Court, by Justices Kennedy, O'Connor, and Souter, in Planned Parenthood of Southeastern Pennsylvania v. Casey, is instructive. In discussing when to overrule explicitly previous law, the justices lay out a few factors for consideration. Overruling important precedent is only appropriate:
 * Where doctrine has become unworkable and irrelevant, or has become needlessly obscured by a confusing line of cases. Courts should ensure that the law is accessible to practitioners and citizens alike by protecting against needless confusion.
 * If society has not built or organized itself upon the precedent that the court is considering overruling. The Casey court explained its reluctance to overrule Roe v. Wade partially based upon this factor. In short, if there is a "reliance interest" in the established law, courts should be careful in overruling the decision.
 * Where facts have changed. The Casey court stated that the Supreme Court was justified in overruling Plessy v. Ferguson, in Brown v. Board of Education, mostly because the facts of the situation had changed, and society had recognized that racism and segregation were truly evil, where before it had not. Where no such fact change exists, courts should try not to overrule a decision.

These factors for considering whether or not to overrule important cases are not mandatory, but are talking points that courts should use in discussing cutting against established law. They are loosely followed, and more often invoked by dissents.

The restatements, and stare decisis
To ensure that the common law remains accessible, rather than a nebulous and ill-defined corpus, the American Law Institute codifies common law in the extremely authoritative Restatements of the Law. The ALI collects and considers different iterations of the common law from different jurisdictions, and compiles them into one volume, selecting the most useful and consistent common law doctrine where American jurisdictions differ. Sometimes the restatements can push the common law forward, by choosing to endorse the most progressive common law authority. Since the Restatements, as they are called by practitioners, are uniform and well-reasoned, courts and litigants take the Restatements as persuasive authority, and tend to follow the ALI's lead, as such.

An example of the Restatements as a progressive force is the doctrine of promissory estoppel. Promissory estoppel functions as a kind of quasi-contract, allowing a party who justifiably relied on another party's promise to recover any losses incurred as a result of the promisor's breach, even when no written contract exists. This doctrine was rarely applied prior to its adoption in the Restatement (First) of Contracts, since many common-law courts were loathe to move away from a formalistic approach to contract law, which required a written document for any lawsuit at all. After the ALI endorsed promissory estoppel in its Restatement (First) of Contracts, arguing that estoppel could function to prevent a sophisticated party from abusing the naivety of an unsophisticated party, courts began to apply promissory estoppel more and more, finally gaining near universal acceptance in the mid-1900s.

The Restatement can change common law, then, but also prove just how hard it is to change the common law. If it takes the full force of the ALI and the Supreme Court to push the common law forward, it's obvious that the common law will rarely change.

Selective stare decisis
Right-wing courts and right-wing thinkers often use stare decisis as a way to prevent the law from becoming a tool of social change. Stare decisis has been used to justify conservative viewpoints as far back as opposing desegregation: the argument went, "why change the law? Stare decisis justifies keeping segregation alive." More recently, gay rights opponents advocate using stare decisis to put the brakes on what opponents see as a monolithic, evil gay agenda.

However, right-wing courts selectively apply stare decisis, proving that the stare decisis trumpet is just so much hypocrisy. The conservative-dominated 2007 United States Supreme Court had no compunction in overruling nearly 25 years of pro-choice decisions, requiring an exception to any restriction on abortion that protected the life of the mother in Gonzales v. Carhart. Further, the 2007 Supreme Court sounded the trumpets of what may become a full-scale retreat from affirmative action (as defined and restricted in Grutter and Grantz), only 6 years after the Court professed its wish to end the incessant court battles that this divisive topic engendered.

Sandra Day O'Connor… we miss you.