Is stare decisis on a path to extinction?

For decades the academy of administrative law has written extensively on judicial precedent. Students are indoctrinated with the principle of Stare decisis, a Latin term which means “to stand by that which is decided”.

The emphasis on judicial precedent has a strong economic argument in support of its preservation independent of its merits because mastering the details of court rulings should yield a competitive advantage in litigation as a result of its questionable domination of law school curricula.

However with each passing day the emphasis on the widespread acceptance of judicial precedent may be misplaced however meritorious.  Consider for example a post of Professor Richard Pierce on a recent ruling of the Supreme Court; he concludes:

The Court’s reasoning is bizarre.

If the Supreme Court or lower courts use a similar reasoning process in the myriad other contexts in which the issues arise, they will create an environment in which it is impossible for federal, state and local agencies to function effectively.

There is no suggestion that the above instance is in itself is a cause for concern but it appears that in recent years it might be more prevalent than some legal scholars might wish to admit. Nonetheless such actions by the courts make one wonder whether stare decisis applies only until which time a judge decides that judicial precedent is not supportive of the judges’ views on the  current issue before the court notwithstanding a meritorious connection between the current issue and past judicial rulings.

Historically although members of the economic profession have taken a very serious interest in the analysis of regulations it has been somewhat difficult to convince them  to take a comparable interest in administrative law in part because they believe there is not a body of thought capable of producing reproducible projections of future outcomes.  The lessening of stare decisis would not only reinforce the aforementioned conclusion but would also support claims that law school curricula are mistakenly biased toward teaching students how to prevail in court at the expense of prevailing at an agency or having the ability to provide compliance assistance to a client.

Fortunately proponents of stare decisis occupy influential positions, including as reported by NBC News:

“If confirmed to the D.C. Circuit, I would follow Roe v. Wade faithfully and fully. That would be binding precedent of the court,” Kavanaugh said, referring to the legal principle of stare decisis. “It’s been decided by the Supreme Court.”

In this period of a multitude of 5-4 decisions at the Supreme Court with generally the same 5 and the same 4 acting in tandem, time will tell.

With the reams of articles devoted to Chevron, which in total might in themselves suggest a retreat from stare decisis, coupled with the recent additions to the  Supreme Court, one could argue that  diminution of stare decisis deserves  comparable attention by the academy.

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