This oped reminds me of two Con Law cases. In Casey, the majority (liberals) asserted stare decisis, while the dissenters (conservatives) argued that wrong decisions should be overruled. Later, the two groups changed sides in Lawrence: the liberal majority overruled Bowers, while the conservatives argued for stare decisis. So what on earth is stare decisis? It’s hard not to think of it as a mere tool to mask the judges’ preference for a prior decision when they say it should be followed due to stare decisis. When they don’t like a specific decision, the principle would suddenly be forgotten.

In my opinion, the principle of stare decisis may not, and should not mean too much in a court with the power to change the precedents. I am interning with the appeals team in the office of the prosecution in a tribunal, and we have a prosecutor who has just joined us from the trial team. In an internal meeting, the prosecutor listed the prior case law in detail to support a point that he was going to make. After the presentation, the senior prosecutor of the team asked him, “so why should the appeals chamber follow the case law? Don’t forget they have the power to change it.”

So I agree with Devin that the oped’s reasoning is flawed: for the High Court, what matters should not be stare decisis, especially considering the frequency with which they make not-so-sound decisions. But I want to raise another question (this seems to be totally unrelated to the topic of the discussion…): should there be stare decisis in lower courts? To my knowledge, in most civil law countries, when a lower court judges disagree with a higher court precedent, all that they have to do is to write down in detail the reason why they are not following the precedent, and then rule according to their own opinion. Prior decision still has some kind of binding force in those countries, because it takes additional efforts for a judge to write a detailed opinion explaining the reason not to follow the precedents, and most judges may not have time or interest to do that.

However, at least in those countries we wouldn’t see a decision saying that something is wrong but the court is forced to accept it. When I just started learning law, I thought such decisions are just unbelievable. How can judges give a decision that they think is wrong? But later I began to recognize that my dislike for it may be based my assumption that law is only about justice. So what is the advantage of maintaining a wrong decision made by a higher court? Stability. If every court is allowed to make decisions at will regardless of what higher courts have said, it will be hard for people to expect the result of their suits when they walk into court, or when they decide whether they should walk into court or not. I still don’t like it, but now I do think there is some value for stare decisis to exist in lower courts.

-- WenweiLai - 08 Jul 2010