Publication Date

2013

Abstract

Does stare decisis require future courts to follow the rules stated in a precedentsetting opinion Or must future courts merely reconcile their decisions with the ultimate result of the precedentsetting case It is widely assumed that a rulebased approach puts greater constraints on future courts but two recent Supreme Court decisions "“ WalMart Stores Inc v Dukes and Ashcroft v Iqbal "“ turn this conventional wisdom on its head In both cases what the Court said about the governing rules was not inherently controversial and would leave courts with considerable flexibility going forward But what the Court did in applying those rules "“ the ultimate results in WalMart and Iqbal "“ could be very destabilizing if stare decisis mandates consistency with those results in future casesThis article argues that the lawmaking content of a judicial decision should be only the rules that the court states in deciding the case To infer binding obligations from results alone creates a risk that "“ as with WalMart and Iqbal "“ future courts will be forced to intuit more radical legal changes than the precedentsetting court actually embraced Put simply a judicial decision should create binding law only to the extent that it says what the law is Unless and until new legal rules are declared whether by the judiciary in later cases or by legislation courts should be free to operate within the existing legal framework without being required to reconcile their decisions with the mere results of earlier ones

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