Stare Decisis An Assignment Submitted by Name of Student Name of Establishment Class XXXX, Section XXXX, Fall 2012

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Abstract

In my essay I am going to highlight the following issues: 1) Explain the concept of stare decisis; 2) Assess the importance of stare decisis for judicial decision-making; 3) Support my position with examples from scientific literature and legal precedent; I am going to raise a significant problem of applying stare decisis in order to provide predictability in the law as well as consistency of all the same-level courts decisions. Moreover, I would like to talk about topicality of this very theme, as it is even impossible to overestimate to significance of stare decisis principle, as all the court decisions are grounded on the previous cases.

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Stare Decisis To begin with, it is important to clarify the concept of stare decisis in order to talk about its main characteristics. Stare decisis is a Latin term which originally means to stand by decided cases; to uphold precedents; to maintain former adjudications. It is a doctrine that when a court has once laid down a principle of law as applicable to a certain set of facts, it will adhere to that principle, and apply it to future cases where the fact are substantially the same. (see The Influence of Stare Decisis on the Votes of United States Supreme Court Justices, Jeffrey A. Segal, Harold J. Spaeth, p.974). Stare decisis has been called many things, among them "a principle of policy," "a series of prudential and pragmatic considerations," and simply "the preferred course." Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts. (Stare Decisis as Judicial Doctrine, Randy J. Kozel). The way stare decisis is supposed to be used is indicated by the definition of it in Bouvier's Law Dictionary of 1856, which is closer to original practice and intent: Stare decisis. To abide or adhere to decided cases. 2. It is a general maxim that when a point has been settled by decision, it forms a precedent which is not afterwards to be departed from. The doctrine of stare decisis is not always to be relied upon, for the courts find it necessary to overrule cases which have been hastily decided, or contrary to principle. Many hundreds of such overruled cases may be found in the American and English books of reports. (Vide 1 Kent, Com. 477; Livingst. Syst. of Pen. Law, 104, 5.)
The decision of the United States Supreme Court in Dickerson v. United States1 places the principles of stare decisis in bold relief. Based on their prior opinions, a majority of the justices in Dickerson would never have approved the original Miranda decision had that case come before them as a matter of first impression. Thirty-four years later, however, in a seventy- two decision, the Supreme Court affirmed Miranda. It did so because Miranda had become a part of our national culture.

Whether or not we would agree with Mirandas reasoning and its resulting rules, were we addressing the issue in the first instance, the principles of stare decisis weigh heavily against overruling it now. . . . While stare decisis is not an inexorable command . . . particularly when we are interpreting the Constitution . . . even in constitutional cases, the doctrine carries such persuasive force that we have always required a departure from precedent to be supported by some special justification. . . . We do not think there is such justification for overruling Miranda. Miranda has become embedded in routine police practice to the point where the warnings have become part of our national culture.

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Therefore, the Dickerson decision requires an assessment of stare decisis role that is not limited to the parochial aspects of legal process. The application of stare decisis involves questions of historical, political, cultural, and philosophical importance. There are essentially two types of stare decisis. One is the obligation that trial courts have to honor the precedents of higher courts. For instance, a local trial court in Mississippi cannot legally convict a person for flag desecration, because a higher court--the U.S. Supreme Court--ruled in Texas v. Johnson (1989) that flag desecration is a form of constitutionally protected speech. The other concept of stare decisis is the obligation of the U.S. Supreme Court to honor past precedents State courts applying federal law are bound by decisions of the U.S. Supreme Court. (Elliott v. Albright, 209 Cal. App. 3d 1028, 1034 (1989)). However, they are not bound by district or circuit court decisionsalthough such rulings are entitled to substantial deference. (see v. City of Escondido, 224 Cal. App. 3d 1349, 1351 (1990)). Finally, federal court decisions on state law are not binding on state courts. (Choate v. County of Orange, 86 Cal. App. 4th 312, 327-28 (2000)). Therefore, there are lots of difference in deciding what previous decision to use and whether a judge needs to use it at all. ("Reflections On Stare Decisis, James Hardisty). There are even two variants on this very doctrine in scientific literature and in real life. The first one is the strong form, which treats precedents as binding. However, there is a weaker form, which treats precedents as merely persuasive. In this second variant, a dissenting opinion could be more persuasive than the prevailing opinion, if the person citing it agreed with it. In this variant, precedent becomes merely a convenient way to save time and words by citing the reasoning in another case, saying "My reasoning is similar to that", and nothing more. As John Roland stresses Historically, what came to be treated as binding started as persuasive. Returning to treatment of precedents as merely persuasive would solve lots of judicial problems and controversies, but history shows us that judges are prone to drift back to treating them as binding unless some corrective mechanism is instituted to prevent it. (How stare decisis Subverts the Law, John Roland, University of West Los Angeles Law Review, Vol. 34, 2002). To sum up, I would like to stress the following points: Even though there are lots of opinions concerning applying the doctrine of state decisis and its types in particular, still the very system of common law is based on the legal precedent and obeying the previous courts decisions. Therefore, the significance of proper using stare decisis is obvious; After Dickerson vs Miranda the doctrine of stare decisis was estimated properly and had its rules being explained; The principle of stare decisis has always been tempered with a conviction that prior decisions must comport with notions of good

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reason or they can be overruled by the highest court in the jurisdiction, though this may lead to a variety of court decisions that would contradict each other.

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References

"Reflections On Stare Decisis, James Hardisty, " Indiana Law Journal: Vol. 55: Iss. 1, Article 3., (1979);

The Philosophy of Law, ed. R.M. Dworkin, Oxford Press, (1977);

The Constitutional Case Against Precedent, Gary Lawson, 17 Harv. J.L. & Pub. Pol'y 23, 24 (1994);

Stare Decisis as Judicial Doctrine, Randy J. Kozel, 67 WASH. & LEE L. REV. 411 (2010);

The Influence of Stare Decisis on the Votes of United States Supreme Court Justices, Jeffrey A. Segal, Harold J. Spaeth, American Journal of Political Science, Vol. 40, No.4, November 1996, Pp. 971-1003;

The Rule of Law and the Law of Precedent, Daniel A . Farber, 90 MINN. L. REV. 1173, 1179 (2006).