History Of Stare Decisis Term Paper

Excerpt from Term Paper :

Stare Decisis

Legal Precedent and the Legal System

The principle of stare decisis is a legal principle that suggests that courts rule consistently with case precedent or cases that have been previously decided. The doctrine originated from the common law in England and was purposed to promote uniformity in the justice system. Courts are not always bound to rule according to previous decisions, especially if these decisions are from districts outside of the sitting court, and increasingly many courts have declined to follow precedent in its rulings. However, the United States Supreme Court, as the highest Court in the land, sets the precedent for the courts of the country on constitutional issues. If a lower court fails to follow a Supreme Court decision, its decision will be overruled in the event of an appeal. Stare decisis, although instituted for a beneficial purpose, has not been without controversy. The Supreme Court is the only court that can overrule itself; and its decision to do so or not to do so, can sometimes be affected by the political, social, or racial climate of the time. Furthermore, stare decisis has often been criticized for the fact that it can usurp a lower court's power to decide a case based on the facts of that case. On the other hand, many will agree that the principle for which stare decisis was put in place -- uniformity and consistency -- has been established out over the years; as the Courts have abandoned many unjust decisions in our nations' history, and through stare decisis these decisions remain history.


"Stare decisis" is a legal doctrine and a Latin term that literally means "to stand by that which is decided" (Lectric Law Library). The principle requires that a judge rule consistently with previous courts regarding the same issue. In other words, the doctrine suggests that courts prior to ruling on a case are expected to determine if the issue before them has been previously decided and take this into account when they are making their decision. If the issues are identical or very similar, stare decisis suggests that the rulings be identical or similar.

However, stare decisis has not always been relied on (Lectric Law Library). Courts at times find it necessary to overrule previous decisions particularly if there are distinguishing facts before them, or if the previous decision has resulted in an injustice or impartiality. It follows that while stare decisis is widely used by courts, it is not a principle that is mandatory; and courts may use their discretion in deciding whether to follow the doctrine. The Supreme Court case of Burnet v. Coroando Oil and Gas Co., which was decided in 1932 illustrates the principle that stare decisis is not required. Justice Brandeis in the case cited to 28 times that the Supreme Court had overruled previous decisions (Maltz). In the period from 1937 to 1949, the Court overruled earlier decisions in 21 cases…by 1959 the number of cases in which the Court had reversals had increased to 60 (Maltz). The purpose of this paper is to examine the doctrine of stare decisis including when courts have relied on it and when they have departed from it.

The History of Stare Decisis

Stare decisis originated under English common law. A natural stability for consistency in the law gave rise to a reliance on cases decided as far back as the 14th Century (Von Moschzisker). As the English system of law developed, the principle of stare decisis was introduced as a principle in that "a deliberate or solemn decision of a judge or court made on a question of law is an authority or binding precedent in the same court or on other courts of equal or lower rank in subsequent cases where the same point is in controversy" (Von Moschzisker). It follows that the principle of stare decisis, when it was developed, bound lower courts to rule as higher courts had ruled on the same or similar issue. The connotation is that higher courts make the precedent for lower courts to follow, and if the lower courts fail to follow these decisions, they can be subject to being overruled if the case is appealed.

However, at its institution, courts were given discretion as to whether or not to follow the doctrine. "The degree of authority belonging to such precedents necessarily depends on its agreement with the spirit of the times or the judgment...
...It follows that since the implementation of stare decisis in the common law courts in England, courts have been given discretion and expected to judge the correctness of the previous decision, and to overrule it if the decision turns out not to be a sound one. Since its implementation, and based on Justice Brandeis's observations in the Burnet case above, courts have not always followed the doctrine of stare decisis and have ruled inconsistently with previous decisions at an increasing rate. The question then is that if stare decisis exists to promote stability in the legal system, but courts are not bound to follow stare decisis, how effective is the doctrine?

When Is Precedent Binding On A Court?

Before addressing the controversy of stare decisis, it is important to note that not all courts at all times are bound by previous decisions. The only precedent that is binding on all courts are the decisions of the U.S. Supreme Court. In the landmark case, Marbury v. Madison (1803), the United States Supreme gave itself the power of judicial review. Chief Justice Marshall commented that, "The Constitution of the United States vests the whole judicial power of the United States in one supreme court…and inferior courts." With this in mind, the Constitution of United States vested the power of judicial review in the Supreme Court and what this means is that the precedent of the Supreme Court are binding on all the courts of the country. Based on the doctrine of stare decisis, all lower federal courts are required to follow the United States Supreme Court decisions.

Likewise, under the system of federalism, the each state has its supreme court that has the same power as the U.S. Supreme Court to rule on issues of state law and make state precedent. What this means is that all state courts are bound by the rulings of its state supreme court. If a ruling court is not a Supreme Court ruling, a decision is precedent only for cases that come within the court's jurisdiction (Del Carmen). For example, decisions of the Fifth Circuit Court of Appeals are precedent only in courts that are a part of the Fifth Circuit -- Texas, Louisiana, and Mississippi (Del Carmen).

The Controversy of Stare Decisis

The controversy surrounding stare decisis lies in the fact that to suggest or require a court to decide a current case on what has been previously decided is unfair to the defendant in the case. Many opponents argue that stare decisis can actually be counter productive if based on a court decision that is not well founded. According to John Roland, the doctrine presumes that all precedents are well founded, unbiased legal decisions, rather than political decisions (Roland). It follows if a decision is based on precedent and the precedent happens to be based on factors other than those that are legally sound, to rely on that precedent would result in a trend that counteracts the original purpose which stare decisis was founded on. Judges are human and at times their decisions are based on more than just legal factors. While most judges are concerned with fairness in the legal system, some at times are influenced by the current political, social, and/or racial climate.

For example, in the landmark Supreme Court decision Roe v. Wade (1973), the Court ruled that a woman's right to have an abortion during the first trimester should be granted. At the time the Court decided this case, the nation was in the midst of an extremely liberal period -- the women's liberation movement along with having just ended the Civil Rights Movement. It follows that during highly political and powerful movements the Court's decisions are likely to reflect these movements as it did in the Roe case. The Roe case today is still good law, has been challenged repeatedly, but has yet to be overruled. The Supreme Court is the only Court that can overrule itself, and until it does, all decisions regarding the issue of abortion must be decided in conformity with Roe. The issue of following precedent then remains -- if cases are decided in light of what is occurring in the political, social, or racial climate of the times, and lower courts are bound to follow the case precedent, it is inevitable that at some point that a court's decision will be rightfully challenged.

A challenged case in which the Supreme Court decided based on the racial climate of the times was the decision of Plessy v. Ferguson…

Sources Used in Documents:


Briggs v. Elliott, 342 U.S. 350 (1952).

Del Carmen, R. (2007). Criminal procedure: law and practice 7th Ed. Belmont, California:

Thompson Wadsworth.

Gonzales v. Carhart, 127 S. Ct. 1610 (2007).

Cite This Term Paper:

"History Of Stare Decisis" (2010, December 10) Retrieved March 1, 2021, from

"History Of Stare Decisis" 10 December 2010. Web.1 March. 2021. <

"History Of Stare Decisis", 10 December 2010, Accessed.1 March. 2021,