On Precedent & Stare Decisis

Reliance on precedent—or adherence to the legal principle of stare decisis—is an integral aspect of the adjudication of the law, and for good reason. Uniformity and consistency, as has often been stated, is the most practical method in insuring consistency, fairness, and the equal protection of the law to all citizens.

Further, seeking guidance from past experience is a completely natural human phenomena. Each individual will, in the course of their day-to-day lives, refer to their own past experiences and/or the past experiences of others when confronted with the necessity of successfully completing an endeavor. As Karl N. Llewellyn has pointed out, "[i]t takes time to solve problems. Once you have solved one it seems foolish to reopen it."

Neither I, nor any other reasonable person denies this. Past experience is not only helpful in solving contemporary problems and challenges, it is a necessity.

What this does not mean however is that precedent or past experience should be blindly followed simply because it is precedent, for such an approach must base itself completely on the assumption that precedent or past experience is always correct, which it surely is not. I would never refer to a past example if I knew, or even suspected that it was incorrect. Neither should a jurist, or tribunal of jurists, follow and replicate a precedent if they know or believe it to be wrong. As important as learning from past successes so that they may be replicated is, so is learning from past wrongs so that they may be rectified. Adherence to bad precedent insures not only that prior wrongs are replicated, but propagated and multiplied into the present and future as well. The re-application of incorrect precedent is, in practical terms, nothing short of adding fuel to the fire.

Those against the reversal of Roe v. Wade on the basis of stare decisis alone would do well to keep this in mind.