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• Title: Stare Decisis in a Classical and Constitutional Setting: A Comment on the Symposium (Response to Article by Gary Lawson in This Issue, P. 1)
• Author : Ave Maria Law Review
• Release Date : January 01, 2007
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 303 KB

Description

The doctrine of stare decisis presents puzzles wherever it appears. Why should a court give "weight" to--or regard itself as "bound" by (1)--an earlier decision rendered by the same court, or a court of equal stature? (2) It seems that there are two possibilities. The later court will think that the earlier decision got the law right, or it will think the earlier decision got the law wrong. In the first case, it seems that there is no need to talk of following the earlier decision or of being "bound" by it; the later court can simply decide the current case in accordance with what it thinks the law is. And in the second case, it is not clear why the error of the earlier decision should be perpetuated. Two wrongs famously do not make a right. So why commit injustice just because injustice has been committed before? (3) These are familiar, even perennial, questions. (4) The present symposium does not ask its contributors to address these questions across the board; its more focused topic (which, respecting the venerable conventions of academic symposia, the various contributors have addressed or neglected in varying degrees) concerns the relation between stare decisis and the originalist approach to constitutional interpretation. In responding to these contributions, I will begin by briefly reviewing the prudential concerns discussed by some of the symposiasts, concerns that have led many courts and scholars to favor a modest doctrine or policy of stare decisis. Then, focusing in particular on the challenging articles by Charles J. Reid, Jr., and Gary Lawson, I will ask what difference it makes, if any, if the question of stare decisis is considered with reference to the text and historical context of the United States Constitution.

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