Book contents
- Frontmatter
- Contents
- List of tables and figure
- Preface
- 1 INTRODUCTION
- 2 A SURVEY OF THE EMPIRICAL LITERATURE
- 3 A LIST OF CASES
- 4 SOME CHARACTERISTICS OF THE OVERRULING AND OVERRULED CASES
- 5 THE CONFERENCE VOTES
- 6 ATTITUDINAL VOTING
- 7 PERSONAL AND INSTITUTIONAL STARE DECISIS
- 8 IDEOLOGY
- 9 CONCLUSION
- Appendix I Overruling and overruled decisions of the Vinson, Warren, Burger, and Rehnquist Courts
- Appendix II Cases overruled by the Vinson, Warren, Burger, and Rehnquist Courts
- Subject/name index
- Case index
1 - INTRODUCTION
Published online by Cambridge University Press: 06 December 2010
- Frontmatter
- Contents
- List of tables and figure
- Preface
- 1 INTRODUCTION
- 2 A SURVEY OF THE EMPIRICAL LITERATURE
- 3 A LIST OF CASES
- 4 SOME CHARACTERISTICS OF THE OVERRULING AND OVERRULED CASES
- 5 THE CONFERENCE VOTES
- 6 ATTITUDINAL VOTING
- 7 PERSONAL AND INSTITUTIONAL STARE DECISIS
- 8 IDEOLOGY
- 9 CONCLUSION
- Appendix I Overruling and overruled decisions of the Vinson, Warren, Burger, and Rehnquist Courts
- Appendix II Cases overruled by the Vinson, Warren, Burger, and Rehnquist Courts
- Subject/name index
- Case index
Summary
In Gulliver's Travels, Jonathan Swift satirized stare decisis in the following language:
It is a maxim among … lawyers, that whatever has been done before may legally be done again: and therefore they take special care to record all the decisions formerly made against common justice and the general reason of mankind. These, under the name of precedents, they produce as authorities, to justify the most inquitious opinions; and the judges never fail of directing accordingly.
Swift was deriding the strict version of stare decisis; a version which binds judges to follow precedent. The United States Supreme Court has always used a more liberal version. According to this version, the justices have a prima facie duty to conform to the precedents of the Court, but that obligation can be overridden if they offer a cogent reason for so doing. What constitutes a “cogent” reason in this context is uncertain; one certainly would exist if it could be shown that the law in the prior case is no longer workable or never was.
Before we explore stare decisis, it is necessary to define it. “Stare decisis” is a shortened form of the Latin phrase “stare decisis et non quieta movere,” which Black's Law Dictionary defines as “To adhere to precedents, and not to unsettle things which are established.” It takes two forms: vertical stare decisis and horizontal stare decisis. The former refers to the obligation of lower court judges to adhere to the precedents of higher courts within the same jurisdiction. Horizontal stare decisis concerns the duty of a court to conform to its own precedents or that of a sister court, if any.
- Type
- Chapter
- Information
- Stare IndecisisThe Alteration of Precedent on the Supreme Court, 1946–1992, pp. 1 - 9Publisher: Cambridge University PressPrint publication year: 1995