Stare decisis

Stare decisis (Latin: [ˈstareː ˈdekisis], Anglicisation:

[ˈstaːɹi dəˈsaɪsɪs], "to stand by things decided")
(more fully, "stare decisis et non quieta movere") is a
Latin legal term, used in common law to express the
notion that prior court decisions must be recognized
as precedents, according to case law.
This doctrine is not held within most civil law
jurisdictions as it is argued that this principle
interferes with the right of judges to interpret law and
the right of the legislature to make law. Most such
systems, however, recognize the concept of
jurisprudence constante, which argues that even though judges are
independent, they should rule in a predictable and non-chaotic manner. Therefore, judges'
right to interpret law does not preclude the adoption of a small number of selected
binding case laws.

Principle
The principle of stare decisis can be divided into two
components:
The first is the rule that a decision made by a higher
court is binding precedent which a lower court cannot
overturn.
The second is the principle that a court should not
overturn its own precedents unless there is a strong
reason to do so and should be guided by principles
from lateral and lower courts. The second principle is
an advisory one which courts can and do occasionally
ignore.

Vertical stare decisis

Generally, a common law court system has trial
courts, intermediate appellate courts and a supreme
court. The lower courts administer most day-to-day
justice. The lower courts are bound to follow
precedents established by the appellate court for their
region and the supreme court. Appellate courts are
only bound to follow supreme court decisions. The
application of the doctrine of stare decisis from a
higher court to a lower court is sometimes called
vertical stare decisis.

Horizontal stare decisis

In the United States federal court system, the
intermediate appellate courts are divided into
"circuits". Each panel of judges on the court of
appeals for a circuit is bound to follow the prior
appellate decisions of the same circuit. Precedents of
a United States court of appeals may be overruled
only by the court en banc, that is, a session of all the
active appellate judges of the circuit, or by the United
States Supreme Court.
When a court binds itself, this application of the
doctrine of precedent is sometimes called horizontal
stare decisis. The State of New York has a similar
appellate structure as it is divided into four appellate
departments supervised by the final New York State
Court of Appeals. Decisions of one appellate
department are not binding upon another, and in
some cases the departments differ considerably on
basic points of law.

The last resort

The British House of Lords was not bound to follow its
own decisions until the case London Street Tramways
v London County Council [1898] AC 375. After this
case, once the House had given a ruling on a point of
law, the matter was closed unless and until
Parliament made a change by statute.
This situation changed, however, after the issuance of
the Practice Statement of 1966. It enabled the House
of Lords to adapt English law to meet changing social
conditions. In R v G & R 2003, the House of Lords
overruled its decision in Caldwell 1981, which had
allowed the House to establish mens rea ("guilty
mind") by measuring a defendant's conduct against
that of a "reasonable person," regardless of the
defendant's actual state of mind.
However, the Practice Statement has seldom (rarely)
been applied by the House of Lords, usually only as a
last resort. As of 2005, the House of Lords has
rejected its past decisions no more than 20 times.
They are reluctant to use it because they fear to
introduce uncertainty into the law. In R v Kansal
(2002), the majority of House members took the view
that R v Lambert (a previous case) had been wrongly
decided, but declined to depart from their earlier
decision.

Evasion
And while lower courts are bound in theory by higher
court precedent, in practice judges may sometimes
attempt to evade precedents, by distinguishing them
on spurious grounds. The appeal of a decision that
does not follow precedent might not occur, however,
as the expense of an appeal may prevent the losing
party from doing so. Thus the lower court decision
may stand even though it does not follow the higher
court decision, as the only way a decision can enter
the appeal process is by application of one of the
parties bound by it.
…and resistance
Occasionally, the application of prior case law results
in court decisions which the judge explicitly states
personal disagreement with the judgment he or she
has rendered, but that he or she is required to do so
by binding precedent, that is, the issue at hand was
already decided by a higher court. Note that binding
precedent is thus distinct from stare decisis, which
are decisions from lateral courts, lower courts, or the
same court, and affords deviation based upon
"compelling justification" (see Hilton v.s. Carolina Pub.
Rys. Cmsn., 502 U.S. 197, 202, 112 S. Ct. 560, 565
(1991).)

Glitches
In the United States, stare decisis can interact in
counterintuitive ways with the federal and state court
systems. On an issue of federal law, a state court is
not bound by an interpretation of federal law at the
district or circuit level, but is bound by an
interpretation by the United States Supreme Court.
On an interpretation of state law, whether common
law or statutory law, the federal courts are bound by
the interpretation of a state court of last resort, and
are normally required to defer to the precedents of
intermediate state courts as well.
Courts may choose to follow precedents of other
jurisdictions, but this is not an application of the
doctrine of stare decisis, because foreign decisions
are not binding. Rather, a foreign decision that is
followed on the basis of the soundness of its
reasoning will be called persuasive authority —
indicating that its effect is limited to the
persuasiveness of the reasons it provides.
[edit]
Stare decisis in civil law systems
Stare decisis is not usually a doctrine used in civil law
systems, because it violates the principle that only the
legislature may make law. In theory therefore, lower
courts are generally not bound to precedents
established by higher courts. In practice, the need to
have predictability means that lower courts generally
defer to precedents by higher courts and in a sense,
the highest courts in civil law jurisdictions, such as
the Cour de cassation and the Conseil d'État in France
are recognized as being bodies of a quasi-legislative
nature.
The doctrine of stare decisis also influences how court
decisions are structured. In general, court decisions in
common law jurisdictions are extremely wordy and go
into great detail as to the how the decision was
reached. This occurs to justify a court decision on the
basis of previous case law as well as to make it easier
to use the decision as a precedent in future cases.
By contrast, court decisions in some civil law
jurisdictions (most prominently France) tend to be
extremely brief, mentioning only the relevant
legislation and not going into great detail about how a
decision was reached. This is the result of the
theoretical view that the court is only interpreting the
view of the legislature and that detailed exposition is
unnecessary. Because of this, much more of the
exposition of the law is done by academic jurists
which provide the explanations that in common law
nations would be provided by the judges themselves.
In other civil law jurisdictions, such as the German-
speaking countries, court opinions tend to be much
longer than in France, and courts will frequently cite
previous cases and academic writing. However, some
courts (such as German courts) put less emphasis of
the particular facts of the case than common law
courts, but put more emphasis on the discussion of
various doctrinal arguments and on finding what the
correct interpretation of the law is.

Originalism and stare decisis

Originalism - the doctrine that holds that the meaning
of a written text must be applied - is in tension with
stare decisis, but is not necessarily irrevocably
opposed. As noted at top, "Stare decisis is not usually
a doctrine used in civil law systems, because it
violates the principle that only the legislature may
make law"; Justice Antonin Scalia argues in A Matter
of Interpretation that America is a civil law not
common law nation, and with that in mind, it should
come as no surprise that originalists are generally
unwilling to defer to precedent when precedent
seems to come into conflict with the constitution.
However, Originalism being a theory of interpretation
rather than construction, there is still room within an
originalist paradigm for stare decisis; whenever the
plain meaning of the text is open to alternative
constructions, past precedent is generally seen as a
valid guide, with the qualifier being that it cannot
trump what the text actually says.
Some originalists go even further. In his confirmation
hearings, Justice Clarence Thomas answered a
question from Senator Strom Thurmond about his
willingness to overturn precedent thus:
I think overruling a case or reconsidering a case
is a very serious matter. Certainly, you would
have to be of the view that a case is incorrectly
decided, but I think even that is not adequate.
There are some cases that you may not agree
with that should not be overruled. Stare decisis
provides continuity to our system, it provides
 predictability, and in our process of case-by-case
decision-making, I think it is a very important
and critical concept. A judge that wants to
reconsider a case and certainly one who wants to
overrule a case has the burden of demonstrating
that not only is the case indirect, but that it
would be appropriate, in view of stare decisis, to
make that additional step of overruling that case.
[1]

Possibly he has changed his mind, or there are a very large body of cases which merit
"the additional step" of ignoring the doctrine; according to Scalia, "Clarence
Thomas doesn't believe in stare decisis, period. If a constitutional line of authority is
wrong, he would say, let’s get it right." For this reason, Justice Thomas is viewed by
many legal conservatives as the purest originalist on the Suprenme Court. One blawger
[2]
has even coined a phrase in Justice Thomas's honor: "[1]Stare decisis is fo' suckas!"
[3]

Pros and cons

There is much discussion about the virtue and
irrationality of using case law under such a system.
Supporters of the system, such as minimalists, argue
that following precedent makes decisions
"predictable." For example, a business person can be
reasonably assured of predicting a decision where the
facts of his or her case are sufficiently similar to a
previously decided case. An argument often used
against the system is that it is undemocratic as it
allows unelected judges to make law, or that it
preserves wrongly decided cases. A counter-argument
(in favor of the concept of stare decicis) is that if the
legislature wishes to alter the case law (other than
constitutional interpretations) by statute, the
legislature is empowered to do so. Critics sometimes
accuse particular judges of applying the doctrine
selectively, invoking it to support precedents which
the judge supported anyway, but ignoring it in order
to overturn precedents with which the judge
disagreed.