Abstract
This chapter presents a normative justification of stare decisis, that is, of a court’s presumptive deference to its own prior decisions. Critics often contend that valid epistemic reasons to follow precedent—reasons based on the notion that following precedent will lead to better decisions—do not exist. The author argues, however, that a judge may have both “procedural” and “substantive” epistemic reasons to follow precedents with which she disagrees. Procedurally, a presumptive obligation to follow precedent can force a judge to confront opposing arguments and articulate strong reasons for disagreeing with them, thus improving her own decisionmaking. Substantively, the case-by-case process of generating precedent, involving the input of many judges over time, may generally be superior to ad hoc decisionmaking by a single judge or court. As a conceptual matter, the author argues, these epistemic reasons truly are reasons to follow precedent, because they might apply even when a judge believes a given precedent was decided incorrectly.
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Notes
- 1.
Frederick Schauer (1987, 601) thinks that the arguments in favor of deference to precedent that work (reliance, predictability, and conservation of judicial resources) all relate to stability. For that reason, Schauer (602) thinks that a system of precedent involves trade-offs: “Stability may be unimpeachable in the abstract, but in reality stability comes only by giving up some of our flexibility to explore fully the deepest corners of the events now before us.”
- 2.
Anthony Kronman (1990) is an outlier to this trend as he defends precedent on the grounds that following tradition ties us to the past and is thus valuable in itself. But Kronman defends traditionalism not for its usefulness (in leading to truth or anything else of value) and thus also rejects an epistemic defense.
- 3.
In “Stare Decisis and Constitutional Adjudication,” Henry Paul Monaghan (1988, 752) describes the function of stare decisis as demonstrating “at lease to elites—the continuing legitimacy of judicial review.”
- 4.
Schauer (1987, 594) argues that “the set of cases in which a precedent is applicable but overridden appears to be an empty one” because we distinguish a case rather than override its precedential force.
- 5.
For example, Gerald Postema (1991, 1158) describes his project as explaining “in moral terms why we believe that the fact that a decision of a certain sort was taken in the past provides a sound reason for reaching a similar decision in the situation currently facing us.”
- 6.
Omychund v. Barker, (1744) 26 Eng. Rep. 15 (Ch.) 23; 1 Atk. 21, 33.
- 7.
For a good explanation of Condorcet’s theorem, see Paul H. Edelman’s “On Legal Interpretations of the Condorcet Jury Theorem” (2002, 328).
- 8.
Omychund v. Barker, (1744) 26 Eng. Rep. 15 (Ch.) 23; 1 Atk. 21, 33 (emphasis added).
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Hellman, D. (2013). An Epistemic Defense of Precedent. In: Peters, C. (eds) Precedent in the United States Supreme Court. Ius Gentium: Comparative Perspectives on Law and Justice, vol 33. Springer, Dordrecht. https://doi.org/10.1007/978-94-007-7951-8_4
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