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Foolish Consistency: on Equality, Integrity, and Justice in Stare Decisis Christopher J University of Baltimore Law ScholarWorks@University of Baltimore School of Law All Faculty Scholarship Faculty Scholarship 6-1996 Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis Christopher J. Peters University of Baltimore School of Law, [email protected] Follow this and additional works at: http://scholarworks.law.ubalt.edu/all_fac Part of the Law Commons Recommended Citation Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis, 105 Yale L.J. 2031 (1996) This Article is brought to you for free and open access by the Faculty Scholarship at ScholarWorks@University of Baltimore School of Law. It has been accepted for inclusion in All Faculty Scholarship by an authorized administrator of ScholarWorks@University of Baltimore School of Law. For more information, please contact [email protected]. Articles Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis Christopher J. Peterst CONTENTS INTRODUCTION •••..••••••••...••••••....•••••••.•••• 2033 I. LAYING THE GROUNDWORK. • • • • • • • . • • • • • • • . • • • • .. 2039 A. Two Kinds of Theory of Stare Decisis . .. 2039 B. Consequentialist and Deontological Theories of Stare Decisis in Recent Supreme Court Cases ........... 2044 C. Justice Defined ................................ 2050 II. THE FAILURE OF CONSISTENCY AS EQUALITY ••.......••••. 2055 A. The Traditional Conception: Equality as Tautology ....... 2057 B. The Equality Heuristic ........................... 2062 C. The Failure of Equality as a Substantive Norm in Adjudication . .. 2065 1. The Ontology of the "Wrongness" of Plaintiff Y:S- Treatment . ........................ 2066 2. Equality vs. Equality, Equality vs. Justice ........... 2067 D. A Brief Summation . .. 2072 ID. THE FAILURE OF CONSISTENCY AS INTEGRITY .•••......••.• 2073 A. The Evolution of Law as Integrity ................... 2073 t Bigelow Teaching Fellow and Lecturer in Law, The University of Chicago Law School. For their comments on earlier drafts, I am grateful to Dick Craswell, James Hopenfeld, Richard Posner, Brian Richter, Cass Sunstein, Steve Tigner, and Greg Zemanick. This Article is dedicated to my family. 2031 2032 The Yale Law Journal [Vol. 105: 2031 B. Checkerboards and Invisible Planets ................. 2077 C. Integrity as an Aspect of Justice .................... 2080 1. Integrity and the Courts: Repairing the Ship One Plank at a Time . ......................... 2080 2. Empty Integrity ............................. 2090 a. Checkerboard Statutes from the Original Position ......................... 2091 b. Different Kinds of Checkerboard Solution ........ 2095 c. The Original Position Revisited ............... 2105 3. The Failure of Integrity as a Substantive Norm in Adjudication . ........................ 2110 CONCLUSION: FOOLISH CONSISTENCY ..••..••••••..•••••.••• 2112 1996] Foolish Consistency 2033 There is no power in Venice Can alter a decree established. '1\vill be recorded for a precedent, And many an error by the same example Will rush into the state William Shakespeare l But because there is no Judge Subordinate, nor Soveraign, but may err in a Judgment of Equity; if afterward in another like case he find it more consonant to Equity to give a contrary Sentence, he is obliged to doe it. No mans error becomes his own Law; nor obliges him to persist in it. Neither (for the same reason) becomes it a Law to other Judges .... Thomas Hobbes2 A foolish consistency is the hobgoblin of little minds .... Ralph Waldo Emerson3 INTRODUCTION The rule stare decisis et non quieta movere4 bemused Shakespeare, angered Hobbes, and confounds us still today.5 It confounds us because it occasionally seems to stand justice on its head. Stare decisis demands that courts conform their decisions to decisions reached by previous courts, and sometimes those previous decisions will have been unjust. Stare decisis, that is, sometimes requires courts to reach unjust decisions. This fact may seem to us, as it did to Hobbes, a disturbing anomaly in a system ostensibly devoted to justice. But if strictly observed, the scope of stare decisis can extend far beyond a single unjust decision. Its effects can be cumulative: A single erroneous court I. WILLIAM SHAKESPEARE, THE MERCHANT OF VENICE act 4, sc. I, II. 215-19 (Jay L. Halio ed., 1993). 2. THOMAS HOBBES, LEVIATIIAN 192 (Richard Tuck ed., Cambridge Univ. Press 1991) (1651). 3. RALPH WALDO EMERSON, Self-Reliance, in EMERSON'S EsSAYS 45, 57 (Houghton, Mifflin, & Co. 1980). 4. Black's Law Dictionary translates the phase: "To adhere to precedents, and not to unsettle things which are established." BLACK'S LAW DICflONARY 1406 (6th ed. 1990). Black's defines "stare decisis" as "[t]o abide by, or adhere to, decided cases." Id. 5. Modem commentaries on stare decisis are legion. Among the more interesting are Planned Parenthood v. Casey, 505 U.S. 833, 854-69 (1992); EDWARD H. LEVI, AN INTRODUCflON TO LEGAL REASONING (1948); the essays collected in PRECEDENT IN LAw (Laurence Goldstein ed., 1987); RICHARD A. WASSERSTROM, THE JUDICIAL DECISION 56-83 (1961); Lany Alexander, Constrained by Precedent, 63 S. CAL. L. REv. I (1989); Karl N. Llewellyn, Case Law, in 3 ENCYCLOPAEDIA OF TIlE SOCIAL SCIENCES 249 (Edwin R.A. Seligman ed., 1930); Earl Maltz, The Nature of Precedent, 66 N.C. L. REv. 367 (1988); Roscoe Pound, The Theory ofJudicial Decision, 36 HARV. L. REv. 940, 942-43 (1923); Lewis F. Powell, Jr., Stare Decisis and Judicial Restraint, 47 WASH. & LEE L. REv. 281 (1990); Frederick Schauer, Precedent, 39 STAN. L. REv. 571 (1987). 2034 The Yale Law Journal [Vol. 105: 2031 decision, if followed, becomes two erroneous decisions, then three, and soon a "line" of cases. In this way, stare decisis has the potential to import injustice irremediably into the law. In Portia's words, a single wrong decision need only be "recorded for a precedent,! And many an error by the same example! Will rush into the state.,,6 Of course, in practice stare decisis probably is not often as bad as all that. Just as it can institutionalize erroneous results, it also can (and certainly often does) ensure that just decisions are reproduced more often than they otherwise would be. And the rule of stare decisis as currently observed in Anglo­ American law is not a strict one: Courts can decline to follow their own previous decisions when those precedents are judged to be clearly in error.7 Lawyers and judges, moreover, regularly display amazing ingenuity in "distinguishing" unfavorable precedents that otherwise would be "controlling."s In the real world, then, the prospect of grievous injustice "rushing into the state" may seem rather remote. But the prospect exists nonetheless. Courts may be adept at manipulating precedent to reach decisions they want to reach, but they are not always able or willing to do so; sometimes courts believe (or claim to believe) they are bound by stare decisis to reach results they think unjust. The opinions offered by the members of our Supreme Court in the recent case Planned Parenthood 6. SHAKESPEARE, supra note I, act 4, sc. I, II. 217-19. 7. See, e.g., Casey, 505 U.S. at 854--69 (declining to overrule Roe v. Wade, 4\0 U.S. 113 (1973), but explaining conditions under which Supreme Court believes overruling its precedent to be appropriate). Only since 1966 has the British House of Lords recognized its authority to overrule its own precedent. See Practice Statement (Judicial Precedent), [1966] I W.L.R. 1234; W. Barton Leach, Revisionism in the House of Lords: The Bastion of Rigid Stare Decisis Falls, 80 HARV. L. REv. 797 (1967). 8. As put by Max Radin, one of this century's most elegant writers about stare decisis, modem lawyers and judges have "carried the technique of distinguishing to a very high pitch of ingenuity." Max Radin, The Trail of the Calf, 32 CORNELL L.Q. 137, 143 (1946). Radin was referring specifically to the British House of Lords before its 1966 rejection of rigid stare decisis. See supra note 7. Incidentally, the intriguing title of Radin's article comes from a poem by a minor New England poet named Sam Walter Foss with which Radin begins his piece. Foss's poem will never sit proudly on the shelves beside those of his fellow New Englanders Dickinson, Whitman, and Frost, and it is too long to quote in full here, which is unfortunate because it perfectly encapsulates much of what I hope is the spirit of this Article. In a nutshell, the poem begins with a calf making its way home through the "primeval wood," leaving "a trail all bent askewJ A crooked trail as all calves do." The winding trail is taken up by a dog, then by a sheep; eventually it becomes a path, then a lane, then a road, and finally a crowded city street. For hundreds of years men take the path, ''utter[ing] words of righteous wrath" at its crookedness but following it just the same. The poem ends wonderfully: And men two centuries and a half Trod in the footsteps of that calf. * * * For thus such reverence is lent To well-established precedent. *** But how the wise old wood-gods laugh, Who saw the first primeval calf! Sam Walter Foss, The Calf-Path, quoted in Radin, supra, at 137-38. For a frank discussion by a sitting federal appellate judge of the lengths to which courts will go to distinguish unfavorable precedent (or to analogize favorable precedent), see Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. CHI. L. REv. 1371, 1399-408 (1995). 1996] Foolish Consistency 2035 v. Casel illustrate this phenomenon quite strikingly, all the
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