Collaborative Research: The Establishment of Stare Decisis in the American Legal System

Collaborative Research: The Establishment of Stare Decisis in the

American Legal System

Paul J. Wahlbeck, George Washington University (SES-0550182)

Timothy R. Johnson, University of Minnesota (SES-0550276)

James F. Spriggs, II, University of California, Davis (SES-0550451)

Scholars, judges, and lawyers commonly recognize that stare decisis, the rule that judges follow the rulings in previously decided court opinions, is the central norm underlying the American judiciary. Despite the recognized centrality of stare decisis, however, no social scientific study to date has put forward a comprehensive explanation for why and when it developed. In fact, scholars do not even agree on when the norm of judges respecting precedent became institutionalized in America. This study will provide a theoretical explanation for the origin and development of stare decisis based on the idea that informal political norms, such as stare decisis, result from the strategic choices of decision makers. The researchers will test the predictions derived from their theory using rigorous quantitative tests on data drawn from court opinions issued by colonial courts, state supreme courts, and federal courts (U.S. Supreme Court, U.S. Circuit Courts, and Federal District Courts) from the earliest reported colonial court opinions through 1890.

The emergence and development of stare decisis in America is an example of the more general phenomena of institutional creation and development. Scholars, including Douglass North, have defined institutions as the rules of the game in society, or more formally, constraints that shape human interaction. Because of their importance for structuring human behavior, there has been a wealth of scholarship aimed at understanding the origin and development of institutional rules as agents of political, economic, and social change. Indeed, in the eyes of many scholars the question of where institutions come from and how they develop is one of the most important puzzles confronting social science. By developing a theoretical framework and accompanying empirical tests to understand how the U.S. court system developed this institutional rule, the researchers will be able to explain the origin and development of the most important piece of judicial infrastructure in America.

In addition to the theoretical importance of understanding how and why stare decisis originated and developed, this study also has real-world, implications. Consider Anastasoff v. U.S. (2000), where the U.S. Court of Appeals for the Eighth Circuit ruled that its own practice of issuing unpublished opinions, which cannot be cited as precedent, violates Article III of the U.S. Constitution because the norm of respecting precedent is a constitutionally-binding rule. The majority based this holding, in part, on a historical assertion that stare decisis was an integral element of the Framers understanding of the scope of judicial power. This ruling thus largely turned on an asserted historical fact that the norm of precedent was established and already institutionalized at the founding of America. In addition, according to one commentator, the prohibition on unpublished opinions could disrupt the operation of the federal courts since nearly 80% of the opinions issued by the Courts of Appeals are unpublished, and most circuits have rules denying precedential value to them. Thus, this study of the development of a norm respecting precedent has important, and far reaching, theoretical and practical implications.