A Deliberative Democratic Theory of Precedent

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 precedent may serve other worthwhile functions. This Article argues that rather than providing a binding legal constraint, presumptive deference to precedent is best understood as a mechanism for promoting the democratic legitimacy of a constitutional regime by facilitating reasoned deliberation within the judiciary regarding the most justifiable understanding of the Constitution and generating sustained constitutional dialogue of a deliberative and agonistic nature outside the federal courts. This Article thus contends that deliberation is the governing value that should be used to evaluate and implement stare decisis in practice. This Article explores what a deliberative democratic vision of precedent would entail and concludes that by shifting our focus from law to democracy we can develop a coherent and normatively attractive grand unifying theory of precedent that comports with the best understanding of American legal practice.

This theory also provides a normative framework to critique the approach of the current Court and a descriptive lens that may offer potential hope for the future.