Rule of Law Commons^™

A Deliberative Democratic Theory Of Precedent, Glen Staszewski

University of Colorado Law Review

Stare decisis is widely regarded as a vital mechanism for promoting the rule of law. Yet high courts can always overrule prior decisions with a special justification, and different justices will inevitably have different perspectives on when such a justification exists. Moreover, when courts rely on stare decisis to follow a mistaken or unjustified decision, they arguably undermine the rule of law. Stare decisis therefore does not, and probably cannot, reliably promote a formal conception of the rule of law.

While this reality might lead us to conclude that we should give up on horizontal stare decisis, presumptive deference to …