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January 12, 2006

What *is* Stari Decisis?

Well, it's happened. Write Again Soon has become the definitive place to learn about stari decisis. Or rather, the place people mistakenly go to learn about this mysterious legal term. It started as a comment by Mr. Bad Apologies, then was revisted in my 2005 review of the website. At that time, I noted that "stari decisis" was one of the top search terms people used to get to my site--and how ironic that was, since I don't really have any specific knowlede of the subject. And yet, I am somehow the #5 option on Google when you search for stari decisis.

I have a feeling that if Mr. Samuel Alito wasn't in confirmation hearings right now, my website stats would be a lot lower. Instead, upon checking them this morning, I found that TWO HUNDRED AND FIFTY ONE people clicked on my website in search of information on stari decisis. Poor fools.

I've decided to remedy this immediately. Here is all you need to know about stari decisis. Not being a brilliant legal scholar, I will mostly direct you to other, more reputable sites.

Note: Apparently some of the confusion is coming from the fact that most legal sources refer to it as STARE DECISIS, although stari decisis is also recognized.

First off, I must recommend Wikipedia - a must link website for all things strange and wonderful. Wikipedia notes that stari decisis (or stare decisis) means "to stand by things decided" and in legal terms means that courts must recognize prior court decisions as precedents, according to case law.

Although most civil courts do not recognize stari decisis (because it would inhibit the ability of judges to interpret law and the legislatures to make law), a similar notion of jurisprudence constante exists, which argues that even though judges are independent, they should rule in a predictable and non-chaotic manner.

Again, from Wikipedia:

The principle of The principle of stare decisis can be divided into two components:
The first is the rule that a decision made by a higher court is binding precedent which a lower court cannot overturn.
The second is the principle that a court should not overturn its own precedents unless there is a strong reason to do so and should be guided by principles from lateral and lower courts. The second principle is an advisory one which courts can and do occasionally ignore.

Still need more? Here are some other texts on the issue, although I have to say that culling them from Google was a boring labor of love...

How Stare Decisis Subverts the Law - This essay, penned by Jon Rowland of the Constitution Society (who?) is full of venn diagrams and was too boring for me to read, personally. But skimming it seemed to reveal Rowland's analysis of two types of stari decisis, the binding and the persuasive kind. Rowland appears to argue for a persuasive interpretation of stari decisis, concluding that:

Stare decisis is the way judges seek the safety of the herd. We need to demand they exhibit more courage, and return to fundamental principles, resorting to stare decisis only when the positions lie on the fuzzy boundary of the region of legitimacy.

Stare Decisis and Techniques of Legal Reasoning and Legal Argument, by Paul Perell of Weir & Foulds - although originally published in 1967, this article provides a lot of information on the issue in terms that even *I* could understand. Read it (or skim it, whatever you prefer).

Alito Wrote Abortion Isn't a Protected Right, by Ari Shapiro and Robert Siegel - This story helps explain why stari decisis is such a big deal right now. (It's abortion, stupid.) You can't even begin to understand the possibilities of Alito helping to overturn Roe v. Wade without a basic understanding of stari decisis. Or so I'm told.

UPDATE!! The new count (as of 10:36 p.m. is now THREE HUNDRED AND FOURTY SIX people who clicked on my website searching for info on stari decisis...and that doesn't even count today's numbers, which will show up tomorrow.) Whew!

Posted by madchen on January 12, 2006 12:22 PM

Comments

Okay, I will now officially proclaim myself to be a raving idiot who doesn't deserve to be the legal scholar I pretend that I am.

Clearly, I have spelled "stare decisis" wrong. What can I say. But no need to keep up the charade for my benefit, Jen. Please, by all means, feel free to change your entry to use the correct spelling...

And thus, my faith in google (but not my own intelligence or that of others) is restored.

Posted by: Mr. Bad Apologies at January 12, 2006 01:40 PM

No, no. I do believe that both are technically correct, although obviously stare decisis is the more popular usage.

I did a little checking, and NPR, the Washington Post, and CNN have all used the "stari" form of the term.

Unless we're all crazy. Or perhaps too disinterested to care.

Posted by: Jen at January 12, 2006 01:51 PM

And now we shall conjugate in Latin:

Sto, Stare, Steti, Status

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