Document Type
Article
Publication Title
Chicago-Kent Law Review
Abstract
In this essay, I propose to take legal reasoning seriously. I focus on a limited aspect of the practice of precedent, often called stare decisis. In section II, I frame the problem in two respects. First, I sketch the substantive contours of a practice that, paradoxically, demands that a court adhere to a prior decision it believes wrong. Second, I suggest that justifications for stare decisis may vary with the institutional framework. Section III explicates the idea of a "wrongly decided" case. In section IV, I survey, from an economic perspective, jurisprudential justifications for the practice. Each of the final two sections offers a heuristic model of the practice of stare decisis. Each model focuses on a distinct source of error identified in section III. In the first model, I explore "reliance" justifications grounded on errors resulting from "legal uncertainty." In the second model, I examine similar justifications grounded on errors resulting from uncertainty about the world. These models, I believe, highlight the difficulty of justifying stare decisis when one makes precise both the practice and the institutional context in which it occurs.
First Page
63
Volume
65
Publication Date
1989
Recommended Citation
Kornhauser, Lewis A., "An Economic Perspective on Stare Decisis" (1989). Faculty Articles. 712.
https://gretchen.law.nyu.edu/fac-articles/712
