Talk:Stare decisis

Issue not addressed
Is a federal district court within, say, the 9th circuit required under stare decisis to follow the holding of an appellate district court within, say, the 1st circuit? The article quotes California state law that state superior courts are bound by state appellate courts regardless of where in California these courts reside, but it is not stated whether the same rule applies in the federal arena. Jordan 21:38, 6 December 2011 (UTC) — Preceding unsigned comment added by Jordanotto (talk • contribs)

Judges -> legislators

 * The argument most often used against the system is that it is undemocratic as it allows unelected judges to make law.

I think you guys wanted to say "legislators". Only some U.S. state judges are elected (what a lousy 19th century populist system!). Most judges in other parts of the world are not elected by uneducated beer-drinking wife-beating voters. :) -- Toytoy 23:35, Mar 14, 2005 (UTC)

Originalism -- bias/POV
Selectively quoting from the relevant section:

Likewise, on the other side of the debate, it is almost impossible to determine from whence Justice Douglas pulled his opinion for the court in Griswold v. Connecticut; it cannot be supported by precedent, and so there seems to be broad bipartisan consensus in American constitutional law that stare decisis should be considered inviolate, provided it agrees with your point of view, and discarded (or actively overruled) in all other cases.

This just seems unprofessional and POV. Edits needed [the entire section was added 11 Aug by a Simon Dodd]? Majromax 21:09, 5 September 2005 (UTC)


 * That paragraph was just so POV that I removed it. If someone thinks they can make it NPOV, feel free to restore it in a revised form. Clement Cherlin 20:23, 15 September 2005 (UTC)

POV statements still remain in the Originalism section: "Originalism - the doctrine that holds that the meaning of a written text must be applied..." seems to me rather biased in favor of Originalism as the supreme method of interpretation. How many doctrines of interpretation are there that don't feel 'the meaning of a written text must be applied'? Presenting the definition without any nuance, In my view, is not a NPOV. Need there even be a definition of Originalism in the sentence? I don't plan to remove it unless there is a concurrence on the matter. Vonsnip 02:37, 15 November 2005 (UTC)

Alito
Can someone add relevant material on Stare Decisis wrt to the Alito hearings?

Pizzadeliveryboy 22:06, 16 January 2006 (UTC) ipkmr'tpir ]jmthbgtebhtebh —Preceding unsigned comment added by 72.91.14.34 (talk) 02:16, 5 March 2010 (UTC)

We need to get rid of the blog garbage about Clarence Thomas
I follow the legal newspapers closely and NO ONE has quoted that blogger's statement. Even if it's funny and probably true, it's not a well-known comment on Thomas and it's definitely not in proper encyclopedic style. We need to get it out of this article. --Coolcaesar 08:54, 22 June 2006 (UTC)

On 22 June 2006, the following language was deleted:


 * For this reason, Justice Thomas is viewed by many legal conservatives as the purest originalist on the Suprenme [sic] Court. One blawger has even coined a phrase in Justice Thomas's honor: "Stare decisis is fo' suckas!" [footnote omitted]

First, the phrase "is viewed by many legal conservatives" is an example of "weasel words". Second, while it may be interesting that Justice Thomas is viewed by certain unspecified persons as the "purest" originalist (presumably implying that there are variations and gradations of "purity" with respect to originalism, and that Thomas's "purity" is somehow notable for purposes of an article on stare decisis), this is unverifiable. Third, the coining of a humorous phrase by a "blawger" (web logger) who is apparently at best a tertiary source for information about the legal doctrine of stare decisis is in my opinion tangential in the extreme with respect to an encyclopedia article on the topic. This isn't even presented as Justice Thomas's out of court statement; it's a coinage by a blogger. Yours, Famspear 15:28, 22 June 2006 (UTC)

Marjorie Rombauer
The new material in the article about Marjorie Rombauer is of dubious merit. It is stated that she is providing an "alternative" to dividing the principle of stare decisis into two components: vertical and horizontal. Is she the only one advocating abandonment of that traditional understanding of stare decisis? Is she the only one who says that "precedent" and "stare decisis" are distinct concepts? Is she the only one who says that one legal system can set a "precedent" for another legal system? These ideas seem highly idiosyncratic and unorthodox, and they do not belong in an intoductory paragraph about the principle of stare decisis, IMHO. —The preceding unsigned comment was added by Ferrylodge (talk • contribs) 03:56, 9 January 2007 (UTC).


 * The word "alternative" was my own word. Maybe I threw you off unintentionally. I used the term "alternative" in the sense of "alternative" to the unsourced definition material immediately above the place where I inserted her definitions. I was not trying to imply anything about the validity of the first definitions, or about the rest of the article.


 * From the standpoint of Wikipedia, Rombauer's definitions are "better" than the others in the article only in the sense that her definitions are accompanied by citation (verifiability, and no original research). I had considered removing the unsourced definitions or adding citation tags, but decided instead just to add some material from what I believe is pretty standard law school material. Rombauer's book is one from the West Casebook Series, and I found it during law school (a long time ago) while buried somewhere in the library one day. I was reading this Wikipedia article tonight, and remembered that I had some photocopied excerpts from the Rombauer book that are on point. Maybe we can find some support for the other materials as well. On basic concepts, I like to include sourcing to primary or secondary authority.


 * Obviously a basic secondary authority like Black's Law Dictionary has separate entries for stare decisis and precedent -- but the definitions are very similar. I personally don't have a strong feeling about the issue.


 * I'm not sure why you consider Rombauer's ideas to be "highly idiosyncratic and unorthodox." Also, I did not mean to imply that I believe Rombauer's formulation to be somehow outside the mainstream of legal thought, and I was not trying to relate her definitions --either favorably or unfavorably -- to any specific wording in the article.


 * Do you have any support for your position that her definitions are "highly idiosyncratic and unorthodox"? If you can show that they are so, then maybe we can find something else better. Yours, Famspear 04:29, 9 January 2007 (UTC)


 * I agree that this article could use a bit more footnoting. However, it would be nice if the cited materials could be found on the web, so that people can easily check up on what we say.  The distinction between vertical and horizontal stare decisis is fairly common, and so citation to web resources would seem preferable.  For example, here's an excerpt from an online article by Keenan Kmiec which touches on this subject, in a section titled "Vertical versus Horizontal Precedent":


 * Some instances of disregarding precedent are almost universally considered inappropriate. For example, in a rare showing of unity in a Supreme Court opinion discussing judicial activism, [FN154] Justice Stevens wrote that a circuit court "engaged in an indefensible brand of judicial activism" when it "refused to follow" a "controlling precedent" of the Supreme Court. [FN155] The rule that lower courts should abide by controlling precedent, sometimes called "vertical precedent," [FN156] can safely be called settled law. [FN157] It appears to be equally well accepted that the act of disregarding vertical precedent qualifies as one kind of judicial activism. "Horizontal precedent," the doctrine requiring a court "to follow its own prior decisions in similar cases," [FN158] is a more complicated and debatable matter. Many judges have deemed activist the failure to adhere to horizontal precedent. [FN159] For example, Justice Brennan, dissenting in Engle v. Issac, [FN160] labeled the majority's treatment of a habeas corpus case a "conspicuous exercise in judicial activism--particularly so since it takes the form of disregard of precedent scarcely a month old." [FN161] Likewise, a dissent by Justice Stevens in one of the Court's recent Eleventh Amendment cases mentions several reasons why he believes the majority in Kimel v. Florida Board of Regents to be mistaken. [FN162] Chief among these is that, "by its own repeated overruling of earlier precedent, the majority has itself discounted the importance of stare decisis in this area of the law." [FN163] This "kind of judicial activism," Justice Stevens explains, is "such a radical departure from the proper role of this Court that it should be opposed whenever the opportunity arises." [FN164] Yet, academics argue that it is sometimes proper to disregard horizontal precedent. Professor Gary Lawson, for example, has argued that stare decisis itself may be unconstitutional if it requires the Court to adhere to an erroneous reading of the Constitution. [FN165] "If the Constitution says X and a prior judicial decision says Y, a court has not merely the power, but the obligation, to prefer the Constitution." [FN166] In the same vein, Professors Ahkil Amar and Vikram Amar [FN167] have stated, "Our general view is that the Rehnquist Court's articulated theory of stare decisis tends to improperly elevate judicial doctrine over the Constitution itself. It does so, they argue, by requiring excessive deference to past decisions that themselves may have been misinterpretations of the law of the land." [FN168] For Lawson, Akhil Amar, and Vikram Amar, dismissing erroneous horizontal precedent would not be judicial activism; instead, it would be appropriate constitutional decisionmaking.


 * I don't know enough about Rombauer's work to know if it's "highly idiosyncratic and unorthodox". I assumed from what you said in the article that she advocates abandoning the traditional distinction between vertical and horizontal stare decisis, that she believes "precedent" and "stare decisis" are distinct concepts, and that she would like one legal system to be able to set a "precedent" for another legal system.  But maybe I misunderstood.  This is an additional reason for us to cite online resources rather than offline ones, when possible.  Do you think Kmiec's article would furnish adequate support for the material in our Wikipedia article about vertical and horizontal stare decisis?Ferrylodge 06:00, 9 January 2007 (UTC)

Dear Ferrylodge: Yes, based on just skimming what you've inserted. I'll defer to you on taking the first stab at it, as I haven't read the article (yet).

Now you've piqued my interest regarding Rombauer. I guess I need to re-read her work (it's been years). What I have in my possession is only an extended excerpt from one chapter of her book (chapter 2, entitled "Interpreting and Predicting the Common Law.") I'll try to find time later to go through it based on your comments and see if there's anything there that we should consider.

As you can tell, I don't make too many edits to this article. My main interest in Wikipedia is in the Federal taxation articles. Wow, it's late. Gotta get to bed. Yours, Famspear 06:23, 9 January 2007 (UTC)

Some material not directly related to this article
This article includes quite a bit of information that probably would fit more cogently in the article on Statutory interpretation. The concept of statutory construction -- how courts interpret statutes -- is not central to the concept of stare decisis. The doctrine of stare decisis relates instead to how courts treat prior court decisions. Should some of the material be moved to the other article? Any thoughts, anyone? Yours, Famspear 04:33, 21 January 2007 (UTC)


 * Hi Famspear, I agree that the section titled "How judges interpret statutes" could be removed.Ferrylodge 06:31, 21 January 2007 (UTC)

Legislature
I'm only aware of two countries (U.K. and China) where the legislature acts as the highest court.


 * The provision that the legislature had the final power to interpret laws was very common in Soviet style constitutions. And I suspect that it might be in a few places.  (Maybe Cuba and North Korea, I haven't looked).  Also, the French Court of Cassation isn't now part of the legislature, but it started out that way.


 * The China case is interesting because it's the first Soviet derived constitution in which the power actually means something.


 * Not sure that in practice in the UK the highest court is part of the legislature. References to the House Of Lords as a court nowadays refer to to the Judicial Committee of the HoL. Although members of the HoL the Law Lords cannot vote. This is just another of the gaps between theory and practice in the UK constitution - the plans to form a supreme court should bring the two closer together.


 * At the risk of being picky, Law Lords are only prohibited from voting in the House of Lords by convention - and it is a convention that they do not always follow. For instance, two Law Lords voted on the Hunting Bill. 80.229.220.14 13:21, 9 March 2007 (UTC)


 * If the convention can be set aside without major upheaval, it's definitely not just being picky. Nentuaby (talk) 17:57, 21 October 2008 (UTC)

Off-topic
This doesn't seem to have much to do with stare decisis


 * This helps business owners enter into new type of commerce. However the courts are often used as a means to stall deals gone bad as most business owners are aware that the time and expense of litigating an issue may mean that the proposed project may not be resolved for years until the case goes through the steps of discovery, pretrial motions, trial, appeal through several levels of appellate courts and then finally to collection or enforcement proceedings; indeed it is doubtful that a case will go through all these stages as litigants settle most cases long before they reach the end stages of an appeal to precedent.


 * Well I think there is an idea in there that is related to the realities of appellate practice and transactional lawyering. Uncertainly in the law breeds risk in the marketplace. The doctrine of stare decisis as it is applies through precedents helps to some degree in making the rules of the game (in commerce, or even in family law) known. The idea there can certainly be expressed in a clearer and more well written manner. Alex756

Common Law doctrine
Since this article is quite obviously shrouded in unverifiable and biased claims, would it not be best to start ab initio on it, and assign it to the appropriate section of Wikipedia id est, Common Law? I'm an Irish lawyer, and was looking for a good legal definition of "stare decisis". Whilst Wikipedia gives some very concise definitions for legal principles, this article is firstly, too lengthy, and secondly, too Americanized.

It's important to remember that common law jurisprudence is a world-wide phenomenon, and thus, lengthy discourse on American Supreme Court judgements is inappropriate for the context. I would suggest stripping down the article to the first paragraph, giving the Latin, the definition, and the interesting iota on the maxim about sleeping dogs etc.

Since the Doctrine of Stare Decisis is one of the most basic principles of the common law, it also should be flagged for the Common Law section of Wiki.

Also, what's your reference for the Latin pronunciation? It is my understanding that slender vowels soften consonents in Latin as well.

Cheers, Hullaballoo84 14:06, 13 July 2007 (UTC)


 * Hi Hullaballoo84, as you may begin to discover through time, your observations (although indeed well-stated and worth consideration) apply to nearly all significant Wikipedia topics within the scope of common law jurisprudence. Moreover, considering that a significant percentage (if not most) of the contributors to these articles are neither lawyers nor law students, (and those who are are primarily U.S.-trained) the deficiencies you have identified are pretty much par for the course.


 * Given this circumstance, a drastic reduction of the article content for the ostensible benefit of enhancing the international coverage is ill-advised. What would be much preferred is: 1) an addition of cites and references to substantiate all material claims made in this article, so that those that are not substantiated may be reformed or removed where appropriate; and 2) an addition of content that reflects the international scope of this article topic.


 * In conclusion, your points are well taken, but the resolution you propose would render the English Wikipedia nearly devoid of content for a substantial number of common law topics. This is especially problematic considering that few (if any) practitioners of the law in any jurisdiction consider Wikipedia a premium destination for conducting legal research. Stark reductions in content would therefore harm "general audience" readers the most; those who are not as familiar as you or I may be with the underlying principles to begin with. dr.ef.tymac 15:33, 13 July 2007 (UTC)


 * dr.ef.tymac,


 * Thank you for your response. I accept your point of view on this, but do not agree that because 'the deficiencies [I] have identified are pretty much par for the course', that we should be lazy about weeding such deficiencies out.


 * Since Wikipedia is happily a good reference point for other disciplines (notably, IT), there is no good reason why it should not be a good reference point for the law. I acknowledge that Wikipedia users and contributors are predominantly based in the US. However, using this as an argument against discussion of international law within Common Law jurisprudence undermines the number of people who use Wikipedia outside the US.


 * Since the Internet is not just an American phenomenon, a world-wide overview of Common Law jurisprudence is appropriate here - for the sake of the accuracy of the article. We (Irish lawyers) refer to the courts in the US, Canada, New Zealand, Australia, UK and elsewhere within CL jurisprudence to give ourselves enough information to analyse the law as it stands, or should stand.


 * If we do that, and with reasonable ease, I see no bar to a similar analysis being done in reverse. A general template for articles like this should comprise 1) a definition; 2) a historical outline of the Doctrine/principle in question; 3) general modern application; 4) application in the modern Common Law world (this could be separated, alphabetically, into sub-headings of: "America" (or, "United States"), "Australia", "Canada", "Ireland", "New Zealand", "United Kingdom" &c.


 * To conclude, where defects (though inherent in the system) are pointed out to you, it is not a valid argument to say that those defects are acceptable here because such defects are inherent in the system. Reciprocal arguments never wash too well in these contexts.


 * Kind regards,
 * Hullaballoo84 12:58, 27 July 2007 (UTC).


 * Hullaballoo84, it would seem from your response that you may be missing a fundamental basis of agreement that you and I most likely share. Nowhere have I stated that the current "defects are acceptable". Perhaps this could be inferred from my remarks, but I assure you that was not my intent.


 * My concerns and my remarks reflect little more than practical considerations that I have derived through direct observation. I agreed with you that there is room for improvement, but absent more involvement from a greater cross-section of participants around the world, I predict this (well-advised) need for improvement will not gain enough recognition to take hold and become manifest in the way you and I might eagerly anticipate. For example, out of all the common law jurisdictions in Africa, how many of those get adequate coverage in Wikipedia articles? I haven't researched this, but I speculate the number is quite small. I also speculate that number will remain small unless relative participation levels change dramatically.


 * Perhaps I am wrong, but that's my honest opinion. It would be a shame to build an excellent foundation for a grand new structure, only to have to abort the effort half way through for lack of resources to complete the task. Should one endeavor to construct the Taj Mahal in the middle of a Shanty town? ... or is it better to simply patch up the existing dwellings to avoid obvious dangers and calamity? dr.ef.tymac 14:45, 27 July 2007 (UTC)

Confused
It seems to me that the opening quote from the Ninth Circuit contradicts other statements in wikipedia and other statements on this same page. That quote interprets the doctrine of stare decisis to narrowly apply only to the prior court decisions, and not the legal reasoning behind the decisions (aka the ratio decidendi). After looking at the case in question, IRS v. Osborne (http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?court=9th&navby=case&no=9455890), it seems that the Ninth Circuit thinks that it's not bound by the Ninth Circuit's previous way of thinking.

Yet, the page on ratio decidendi says, "... the ratio decidendi is, as a general rule, binding." Other web sources appear to agree on this point. I'd like to see this point clarified and the Ninth Circuit quote put into that context. Anybody have any feelings on this? --Lockley (talk) 04:26, 26 August 2009 (UTC)

Separately, the statement that US Federal courts "are required normally to defer to the precedents of intermediate state courts as well" is without substantiation and may not be correct. It may be more accurate to say that intermediate state appellate decisions may rather be treated as (weighty) persuasive authority, not binding or mandatory authority, by a federal court. --Poludamas (talk) 18:01, 22 May 2011 (UTC)


 * It's partially correct. The correct rule is as follows: "[F]ederal courts are bound by decisions of a state's intermediate appellate courts unless there is persuasive evidence that the highest state court would rule otherwise."  King v. Order of United Comm. Travelers of Am., 333 U.S. 153 (1948). --Coolcaesar (talk) 05:15, 23 May 2011 (UTC)

IPA
What does the superscript 1 in the IPA mean?--92.78.109.57 (talk) 12:17, 8 October 2010 (UTC)

This article is missing something important
This article needs a section on CONSEQUENCES! I mean, honestly, prior decisions of higher courts are supposed to be "binding" on inferior courts, but... what are the consequences if an inferior judge disregards binding precedent in his decisions?

Appellate Judge: You HAVE to rule this way! District Judge: Umm... go fuck yourself! I'll rule how I want, and roll the dice! What's the worst that can ACTUALLY happen to me? Appellate Judge: Umm... well... you've got a point, there.

Honestly, this whole "stare decisis" thing makes little sense, without actual consequences for violating it!Wikieditor1988 (talk) 19:53, 1 December 2010 (UTC)