Stare Decisis
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Description
Stare decisis—‘keep to what has been decided previously’—refers to important aspects of the role of precedent in Anglo-American adjudicatory practice that distinguish that practice from adjudicatory practice in civil law countries. ‘Precedent’, which exists in every legal system, refers to the body of decided cases in a legal system. Different legal systems, however, treat precedent in radically different ways. An opinion of the Supreme Court of the United States, for example, generally discusses many of its own prior decisions at length and rests its decision on some of them; an opinion of the Cour de Cassation, the highest civil court in France, by contrast, will not even mention its own prior decisions. This difference in the style of opinions parallels, at least in theory, the different role of precedent in legal reasoning in the two systems. Civil law systems in theory give no effect to precedent; while common law systems such as those in the United States and England give substantial effect to it. In these Anglo-American systems, stare decisis names the obligation that, phrased broadly, requires a judge, in resolving case A (call it ‘Instant Case’), to adhere to the decision of the previously decided case B (call it ‘Prior Case’), even when the judge would otherwise have substantial reason to decide Instant Case differently. Though judges, lawyers and commentators generally agree on this broad characterization of stare decisis, they disagree widely in the specification of its details. These disagreements prevent easy summary of the jurisprudential debates as well as render the economic modeller's task more difficult. The causes of the disagreement, however, merit enumeration because they offer some insight into the practice. The following discussion of stare decisis thus begins with an enumeration of the causes of disagreement over the characterization of stare decisis. I then isolate some key features of the practice that may provide a starting-point for analysis and understanding. Finally, I consider some difficulties confronted in the economic modelling of stare decisis.
Source Publication
New Palgrave Dictionary of Economics and the Law
Source Editors/Authors
Peter Newman
Publication Date
1998
Volume Number
3: P-Z
Recommended Citation
Kornhauser, Lewis A., "Stare Decisis" (1998). Faculty Chapters. 1038.
https://gretchen.law.nyu.edu/fac-chapt/1038
