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.
Adoption of Wi-Fi wireless technology continues to see explosive growth. However, many users still operate their home Wi-Fi networks in unsecured mode or use publicly available unsecured Wi-Fi networks, thus exposing their communications to the dangers of "packet sniffing," a technique used for eavesdropping on a network. Some have argued that communications over unsecured Wi-Fi networks are "readily accessible to the general public" and that such communications are therefore excluded from the broad protections of the Federal Wiretap Act against intentional interception of electronic communications.
This Note examines the Federal Wiretap Act and argues that the current Act's treatment of Wi-Fi sniffing might protect unsecured Wi-Fi communications under some circumstances, but that any such protections are incidental, unsystematic, and uncertain. This Note further argues that the current statute's "readily accessible to the general public" language should be interpreted in a way that addresses concerns about Wi-Fi sniffing and users' expectations of privacy. Users' current expectations stem from their limited understanding of the underlying Wi-Fi technology and the accompanying security risks and, more importantly, from the fact that private communications cannot be intercepted without specialized tools and knowledge not readily available to the general public. Finally, this Note advocates for amending the Federal Wiretap Act to remove uncertainty regarding protections against Wi-Fi sniffing. Clear protections against Wi-Fi sniffing would avoid the private and social cost of data theft resulting from sniffing and could close the gap between users' theoretical ability to protect themselves by using security mechanisms and their reduced practical ability to take any such protective measures.