a world where circumstances never changed and where every judicial decision was
unassailably correct, applying the doctrine of stare decisis would be a breeze.
Fidelity to precedent and commitment to sound legal interpretation would meld
into a single, coherent enterprise. That world, alas, is not the one we live
in. Like so much else in law, the concept of stare decisis encompasses a series
of trade-offs-and difficult ones at that. Prominent among them is the tension
between allowing past decisions to remain settled and establishing a body of
legal rules that is flexible enough to adapt and improve over time.
pervasive disagreement over the application of stare decisis to particular
disputes, the doctrine is well established in American jurisprudence. Indeed,
the Supreme Court has gone so far as to describe stare decisis as indispensable
to the rule of law. But as Jeremy Waldron skillfully reminds
us, justifying the doctrine requires more than platitudes. Even a
proposition as fundamental and seemingly intuitive as the ability of stare
decisis to promote the rule of law conceals a considerable amount of analytical
nuance. Professor Waldron concentrates on developing what we might think of as
the rule-of-law case for precedent. Central to his project is the recognition
that rule-of-law benefits arise at several distinct points along the path from
initial ruling to subsequent application. The touchstone is the principle of
"generality," pursuant to which individual jurists subjugate their personal
beliefs to the vision of a unified court working across space and time to fashion
generally applicable norms.
this Essay, I wish to build on Professor Waldron's thoughtful analysis by
saying something more about the other side of stare decisis. The rule-of-law
benefits of stare decisis are invariably accompanied by rule-of-law costs. In
light of those costs, the ultimate question is not whether there are ways in
which stare decisis promotes the rule of law. Rather, it is whether stare
decisis advances the rule of law on net.
Some departures from precedent can promote the rule of law, and some reaffirmances
can impair it. Even if the rule of law were the only value that mattered, excessive
fidelity to flawed precedents would be cause for concern. That
rule-of-law ambivalence, I will suggest, should be brought to bear in
calibrating the strength of deference that judicial precedents receive.