Is stare decisis a sand castle? An open letter to my law professor colleagues

This article was written by guest author F.E. Guerra-Pujol, Associate Professor of Law at Barry University.


Dear colleagues,

As we begin another fun-filled year of teaching and thinking, I can’t help but realize that the foundation of our legal system, the common law doctrine of stare decisis, Latin for “let the decision stand,” is nothing but a pretty sand castle, one that crumbles when exposed to the unceasing and timeless waves of logic and practical experience.

Let me explain.

Stare decisis, or the principle of precedent, is based on a simple moral maxim: the idea that judges should treat like cases alike. The general idea, the one that we law professors teach our students on the first day of law school, is that a decision made by a court is a “binding precedent” that the court itself and all inferior courts in the same jurisdiction are obligated to follow.

Moreover, stare decisis not only provides the moral foundation of the Anglo-American legal system; it is also said that stare decisis promotes the “rule of law,” since it limits the discretion of judges and keeps the legal system predictable and stable over time.

But, at best, the principle of precedent, the maxim of treating like cases alike, provides the mere illusion of predictability and stability. In reality, it neither enhances the “rule of law” nor limits the discretion of judges because, at the end of the day, it is the judges themselves who decide when two cases are sufficiently “alike” or “unalike.”

In summary, the principle of precedent, or stare decisis, is a sand castle for two reasons: one practical, the other logical.

Let us consider the practical problems first. It is all well and good to say that judges should treat like cases alike, but who decides when two different cases, call them case A and case B, are sufficiently “alike” or “unalike”?  Why, it is the judges themselves who decide this!

Thus, from a purely practical perspective, the impotence of the principle of precedent should become apparent at once. On the one hand, the main purpose of stare decisis is to limit the discretion of judges, but at the same time, it is these same judges—i.e. the very same officials whose discretion we wish to limit—who decide which precedents are binding!

To make matters worse, the notion of “binding precedent” is itself an oxymoron, a logical contradiction. That is, even when everyone agrees that case A and case B are, in fact, sufficiently alike for purposes of stare decisis—so that case A controls the outcome of case B—this happy state of affairs now raises a new and more troubling question: on what authority is stare decisis itself based on?

Why is this question so troubling? Because the obvious answer to this question undermines the very moral foundation of our legal system. That is, since it is the common-law judges themselves who have established the doctrine of stare decisis on normative grounds—the moral maxim of treating like cases alike—and since it is the judges themselves who have announced that precedents are binding, then by this same logic, these same judges also have the authority to disregard the doctrine that they themselves have created!

Of course, one could reply that my argument has no practical import, since so few judges would ever openly disregard or undo the doctrine of stare decisis. Really? What about the hard cases?

In any case (pun intended), I am not making a sociological or legal realist observation about how judges actually behave. I am just making a logical argument about the nature of the doctrine of stare decisis. Simply put, if judges have the power to make previous precedents binding under the doctrine of stare decisis, then by the same logic, they also have the power to make those same precedents “unbinding.”

But don’t just take my word for it. Just read your casebooks and find out for yourselves.

Yours truly,

F.E. Guerra-Pujol

Associate Professor

Barry Law School