stare decisis

Stare decisis (Latin: [ˈstaːre deːˈkiːsiːs], Anglicisation: [ˈsteɹɪ diˈsaɪsɪs], "to stand by things decided") is a Latin legal term, used in common law systems to express the notion that prior court decisions must be recognized as precedents, according to case law. More fully, the legal term is "stare decisis et non quieta movere" meaning "stand by decisions and do not move that which is quiet" (the phrase "quieta non movere" is itself a famous maxim akin to "").

In the United States, which uses a common law system in its federal courts, the Ninth Circuit Court of Appeals has stated:

Stare decisis is the policy of the court to stand by precedent; the term is but an abbreviation of stare decisis et non quieta movere — "to stand by and adhere to decisions and not disturb what is settled." Consider the word "decisis." The word means, literally and legally, the decision. Nor is the doctrine stare dictis; it is not "to stand by or keep to what was said." Nor is the doctrine stare rationibus decidendi — "to keep to the rationes decidendi of past cases." Rather, under the doctrine of stare decisis a case is important only for what it decides — for the "what," not for the "why," and not for the "how." Insofar as precedent is concerned, stare decisis is important only for the decision, for the detailed legal consequence following a detailed set of facts.[1]

In other words, stare decisis applies to the holding of a case, rather than to obiter dicta. As the United States Supreme Court has put it: "dicta may be followed if sufficiently persuasive but are not binding."[2]

The doctrine that holdings have binding precedential value is not valid within most civil law jurisdictions as it is argued that this principle interferes with the right of judges to interpret law and the right of the legislature to make law. Most such systems, however, recognize the concept of jurisprudence constante, which argues that even though judges are independent, they should rule in a predictable and non-chaotic manner. Therefore, judges' right to interpret law does not preclude the adoption of a small number of selected binding case laws.

Practical application

Although lower courts are bound in theory by higher court precedent, in practice judges may sometimes attempt to evade precedents, by distinguishing them on spurious grounds. The appeal of a decision that does not follow precedent might not occur, however, as the expense of an appeal may prevent the losing party from doing so. Thus the lower court decision may stand even though it does not follow the higher court decision, as the only way a decision can enter the appeal process is by application of one of the parties bound by it.

Judicial resistance

Occasionally, the application of prior case law results in court decisions in which the judge explicitly states personal disagreement with the judgment he or she has rendered, but that he or she is required to do so by binding precedent, that is, the issue at hand was already decided by a higher court.[3] Note that lower courts cannot evade binding precedent of higher courts, but a court can depart from its own prior decisions.[4]

Structural considerations

In the United States, stare decisis can interact in counterintuitive ways with the federal and state court systems. On an issue of federal law, a state court is not bound by an interpretation of federal law at the district or circuit level, but is bound by an interpretation by the United States Supreme Court. On an interpretation of state law, whether common law or statutory law, the federal courts are bound by the interpretation of a state court of last resort, and are normally required to defer to the precedents of intermediate state courts as well.

Courts may choose to follow precedents of other jurisdictions, but this is not an application of the doctrine of stare decisis, because foreign decisions are not binding. Rather, a foreign decision that is followed on the basis of the soundness of its reasoning will be called persuasive authority — indicating that its effect is limited to the persuasiveness of the reasons it provides.

Stare decisis in civil law systems

Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law. In theory therefore, lower courts are generally not bound to precedents established by higher courts. In practice, the need to have predictability means that lower courts generally defer to precedents by higher courts and in a sense, the highest courts in civil law jurisdictions, such as the Cour de cassation and the Conseil d'État in France are recognized as being bodies of a quasi-legislative nature.

The doctrine of stare decisis also influences how court decisions are structured. In general, court decisions in common law jurisdictions are extremely wordy and go into great detail as to the how the decision was reached. This occurs to justify a court decision on the basis of previous case law as well as to make it easier to use the decision as a precedent in future cases.

By contrast, court decisions in some civil law jurisdictions (most prominently France) tend to be extremely brief, mentioning only the relevant legislation and not going into great detail about how a decision was reached. This is the result of the theoretical view that the court is only interpreting the view of the legislature and that detailed exposition is unnecessary. Because of this, much more of the exposition of the law is done by academic jurists which provide the explanations that in common law nations would be provided by the judges themselves.

In other civil law jurisdictions, such as the German-speaking countries, court opinions tend to be much longer than in France, and courts will frequently cite previous cases and academic writing. However, some courts (such as German courts) put less emphasis of the particular facts of the case than common law courts, but put more emphasis on the discussion of various doctrinal arguments and on finding what the correct interpretation of the law is.

Originalism and stare decisis

Originalism — the doctrine that holds that the meaning of a written text must be applied — is in tension with stare decisis, but is not necessarily irrevocably opposed. As noted at top, "Stare decisis is not usually a doctrine used in civil law systems, because it violates the principle that only the legislature may make law"; Justice Antonin Scalia argues in A Matter of Interpretation that America is a civil law not common law nation, and with that in mind, it should come as no surprise that originalists are generally unwilling to defer to precedent when precedent seems to come into conflict with the Constitution. However, there is still room within an originalist paradigm for stare decisis; whenever the plain meaning of the text is open to alternative constructions, past precedent is generally seen as a valid guide, with the qualifier being that it cannot trump what the text actually says.

Some originalists go even further. In his confirmation hearings, Justice Clarence Thomas answered a question from Senator Strom Thurmond about his willingness to overturn precedent thus:
I think overruling a case or reconsidering a case is a very serious matter. Certainly, you would have to be of the view that a case is incorrectly decided, but I think even that is not adequate. There are some cases that you may not agree with that should not be overruled. Stare decisis provides continuity to our system, it provides predictability, and in our process of case-by-case decision-making, I think it is a very important and critical concept. A judge that wants to reconsider a case and certainly one who wants to overrule a case has the burden of demonstrating that not only is the case incorrect, but that it would be appropriate, in view of stare decisis, to make that additional step of overruling that case.[5]

Possibly he has changed his mind, or there are a very large body of cases which merit "the additional step" of ignoring the doctrine; according to Scalia, "Clarence Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is wrong, he would say, let’s get it right."[6]

Professor Caleb Nelson, a former clerk for Justice Thomas and law professor at the University of Virginia, has elaborated on the role of stare decisis in originalist jurisprudence:

American courts of last resort recognize a rebuttable presumption against overruling their own past decisions. In earlier eras, people often suggested that this presumption did not apply if the past decision, in the view of the court's current members, was demonstrably erroneous. But when the Supreme Court makes similar noises today, it is roundly criticized. At least within the academy, conventional wisdom now maintains that a purported demonstration of error is not enough to justify overruling a past decision....[T]he conventional wisdom is wrong to suggest that any coherent doctrine of stare decisis must include a presumption against overruling precedents that the current court deems demonstrably erroneous. The doctrine of stare decisis would indeed be no doctrine at all if courts were free to overrule a past decision simply because they would have reached a different decision as an original matter. But when a court says that a past decision is demonstrably erroneous, it is saying not only that it would have reached a different decision as an original matter, but also that the prior court went beyond the range of indeterminacy created by the relevant source of law....Americans from the Founding on believed that court decisions could help "liquidate" or settle the meaning of ambiguous provisions of written law. Later courts generally were supposed to abide by such "liquidations." . . . To the extent that the underlying legal provision was determinate, however, courts were not thought to be similarly bound by precedents that misinterpreted it....Of the Court's current members, Justices Scalia and Thomas seem to have the most faith in the determinacy of the legal texts that come before the Court. It should come as no surprise that they also seem the most willing to overrule the Court's past decisions....Prominent journalists and other commentators suggest that there is some contradiction between these Justices' mantra of "judicial restraint" and any systematic re-examination of precedents. But if one believes in the determinacy of the underlying legal texts, one need not define "judicial restraint" solely in terms of fidelity to precedent; one can also speak of fidelity to the texts themselves.[7]

In the United States, the judicial oath prescribes fidelity to the Constitution, rather than to the U.S. Reports; when the two are demonstrably in conflict, the former may prevail over the latter.

Super stare decisis

In 1976, Richard Posner and William Landes coined the term "super-precedent," in an article they wrote about testing theories of precedent by counting citations.[8] Posner and Landes used this term to describe the influential effect of a cited decision. However, neither the idea nor the term gained traction.

While Posner and Landes' idea did not take hold, the term "super-precedent" has subsequently become synonymous with a different idea: the difficulty of overturning a decision.[9] In 1992, Rutgers professor Earl Maltz criticized the Supreme Court's decision in Planned Parenthood v. Casey for endorsing the idea that if one side can take control of the Court on an issue of major national importance (as in Roe v. Wade), then that side can protect its position from being reversed "by a kind of super-stare decisis."[10] The controversial idea that some decisions are virtually immune from being overturned, regardless of whether they were correctly decided in the first place, is the idea to which the term "super stare decisis" now usually refers.

The concept of super-stare decisis (or “super-precedent”) arose anew in relation to the interrogations of Chief Justice John Roberts and Justice Samuel Alito before the Senate Judiciary Committee. Prior to the commencement of the Roberts hearings, the chair of that committee, Senator Arlen Specter of Pennsylvania, wrote an op/ed in the New York Times referring to Roe as a "super-precedent." He revisited this concept (and perhaps humorously expanded it to "super-duper precedent") during the hearings, but neither Roberts nor Alito endorsed the term or the concept.[11]

Lastly, super-stare decisis (or super-duper stare decisis) may be viewed as one extreme in a range of precedential power.[12]

Pros and cons

There is much discussion about the virtue or irrationality of using case law in the context of stare decisis. Supporters of the system, such as minimalists, argue that following precedent makes decisions "predictable." For example, a business person can be reasonably assured of predicting a decision where the facts of his or her case are sufficiently similar to a previously decided case. An argument often used against the system is that it is undemocratic as it allows unelected judges to make law, or that it preserves wrongly decided cases. A counter-argument (in favor of the concept of stare decisis) is that if the legislature wishes to alter the case law (other than constitutional interpretations) by statute, the legislature is empowered to do so. Critics sometimes accuse particular judges of applying the doctrine selectively, invoking it to support precedents which the judge supported anyway, but ignoring it in order to overturn precedents with which the judge disagreed.

Regarding constitutional interpretations, there is concern that over-reliance on the doctrine of stare decisis can be subversive.[13] An erroneous precedent may at first be only slightly inconsistent with the Constitution, and then this error in interpretation can be propagated and built upon by further precedents until a result is obtained that is far outside the bounds of original understanding of the Constitution. Stare decisis is not mandated by the Constitution, and if it leads to unconstitutional results then the historical evidence of original understanding can be re-examined. In this view, predictable fidelity to the Constitution is more important than fidelity to unconstitutional precedents.


1. ^ United States Internal Revenue Serv. v. Osborne (In re Osborne), 76 F.3d 306, 96-1 U.S. Tax Cas. (CCH) paragr. 50,185 (9th Cir. 1996).
2. ^ Central Green Co. v. United States, 531 U.S. 425 (2001), quoting Humphrey's Executor v. United States, 295 U. S. 602, 627 (1935).
3. ^ See, e.g., the concurring opinion of Chief Judge Walker inNational Abortion Federation v. Gonzalez, United States Court of Appeals for the Second Circuit (January 31, 2006).
4. ^ See, e.g., Hilton vs. Carolina Pub. Rys. Comm'n., 502 U.S. 197, 202, 112 S. Ct. 560, 565 (1991)("we will not depart from the doctrine of stare decisis without some compelling justification").
5. ^ Thomas, Clarence (1991). [U.S.] Senate Confirmation Hearings. qtd. by Jan Crawford Greenburg on PBS (June 2003) Accessed 8 January 2007 UTC.
6. ^ Ringel, Jonathan (2004). "The Bombshell in the Clarence Thomas Biography". Fulton County Daily Report.
7. ^ Nelson, Caleb (2001). "Stare Decisis and Demonstrably Erroneous Precedents". Virginia Law Review, 84 Va L. Rev 2001.
8. ^ Landes, William & Posner, Richard. “Legal Precedent: A Theoretical and Empirical Analysis”, 19 Journal of Law and Economics 249, 251 (1976).
9. ^ Hayward, Allison. The Per Curiam Opinion of Steel: Buckley v. Valeo as Superprecedent?, Cato Supreme Court Review 195, 202, (2005-2006).
10. ^ Maltz, Earl. "Abortion, Precedent, and the Constitution: A Comment on Planned Parenthood of Southeastern Pennsylvania v. Casey", 68 Notre Dame L. Rev. 11 (1992), quoted by Rosen, Jeffrey. So, Do You Believe in 'Superprecedent'?, NY Times (2005-10-30).
11. ^ Benac, Nancy. Roberts Repeatedly Dodges Roe v. Wade, Associated Press (2005-09-13): Specter asked, "Would you think that Roe might be a super-duper precedent?"
12. ^ Sinclair, Michael. "Precedent, Super-Precedent", George Mason Law Review (14 Geo. Mason L. Rev. 363) (2007).
13. ^ How stare decisis Subverts the Law, Jon Roland, 2000


  • Obiter Dictum: an opinion voiced by a judge on a point of law not directly bearing on the case in question and therefore not binding.
  • Per Incuriam: refers to a judgment of a court which has been decided without reference to a statutory provision or earlier judgment which would have been relevant
  • Precedent: a statement made of the law by a judge in deciding a case. Two types binding and persuasive. Binding precedent is one made by higher courts of law that a judge is obliged to follow. A persuasive precedent are examples brought in from lower courts or from equal level court of another district and may used for consideration, but higher courts or any courts of another district are not constrained to follow.
  • Ratio Decidendi: The reason for a decision: It is a legal phrase which refers to the legal, moral, political, and social principles used by a court to compose the rationale of a particular judgment. Unlike obiter dicta, the principles of judgment for ratio decidendi stand as potentially binding precedent, through the principle of stare decisis
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a fortiori -- a posteriori -- a priori -- a priori assumption -- ab extra -- ab initio -- actus reus -- ad colligenda bona
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In common law legal systems, the law is created and/or refined by judges: a decision in the case currently pending depends on decisions in previous cases and affects the law to be applied in future cases.
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precedent or authority is a legal case establishing a principle or rule that a court or other judicial body adopts when deciding subsequent cases with similar issues or facts.
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