The downside of decisis

small group of white people looking at red book

Stare decisis is a legal principle by which judges are obliged to respect the precedent established by prior decisions. The words originate from the phrasing of the principle in the Latin maxim Stare decisis et non quieta movere: “to stand by decisions and not disturb the undisturbed.”  In a legal context, this is understood to mean that courts should generally abide by precedent and not disturb settled matters. Wikipedia, citing Adeleye, Gabriel et al, World Dictionary of Foreign Expressions: a Resource for Readers and Writers, page 371 (1999).

There is nothing wrong with the concept.  But what happens in actuality, is that a fairly lengthy case (at times up to 100 pages) is boiled down into a parenthetical descriptor – summarizing a rule of law.

That can be ok the first time, if the reader looks at the cited case.

But over time, that parenthetical “rule of law” (the boiled down version) gets re-cited.  And then that re-cited parenthetical gets re-cited.  And re-cited.  We get further and further away from the original source.

Any litigator or jurist knows what I am talking about.

This can create problems.

At times, traveling backwards through the internal cites in an opinion, a student of the law learns that the rule of law has become mis-cited over time.  (This like a legal version of the game of “telephone,” where you start with a sentence, but by the time it goes around the birthday table, it is garbled.)

Or, perhaps it appears the rule of law is still “good law,” but a review of the internal cites leads to the conclusion that the foundation on which the parenthetical rule of law was based, is no longer good law.  In other words, the ruling of the original case has already been “disturbed,” and stare decisis is no longer appropriate.

The original case holding can be “disturbed” in many ways:  legislative enactments; questioned by rulings in other cases; or other changes in our society means the analogy no longer makes sense.

Everyone in my community is guilty, at times, of a quickie case cite without reading the lengthy history.  The problem is compounded by the fact that US Supreme Court cases can be cited literally thousands of times, and it’s just not possible to review the entire history of a case every time.

I make these points not to criticize lawyers or jurists.  But the busier the courts get (and the busier clerks get), the busier lawyers get, the risk mounts that the rules of law intended to guide us become garbled.

We should be mindful, however, that the downside of decisis is also the upside of decisis.  That is, there is precedent for judges not following precedent, departing from what was not working, and either creating a new doctrine, or in other ways setting a new course.  See, for example, USA v. Dorsey, US Supreme Court, 2012.

I file this in the judicial misconduct dictionary because stare decisis can be intentionally abused.  (It’s also my only dictionary.)