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This paper, which was originally published in The Journal of Legal Studies in 1972, is the first of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis, which is here proposed as a new theory. Shapiro defines stare decisis as loosely meaning the practice of courts in deciding new cases in accordance with precedents, and in the ensuing discussion of the theory, he draws upon insights from both communications theory and previous work of his own on the decision-making process in tort law. He first examines the three branches of communications theory with respect to legal discourse: syntactics (the arrangement, transmission, and receipt of signals or signs, whose key concepts are information, redundancy, and feedback), semantics (the meaning of signals to people), and pragmatics (the impact of signal transmission and human behaviour), and then applies these concepts to the evolution of policy formulation in tort law in the United States and Britain. The survival of stare decisis as the dominant mode of legal discourse, particularly in the area of common law, is explained as its strength in its dual and mutually supporting contents of syntactic and semantic redundancy.

Many think that stare decisis binds even the highest court in a jurisdiction to follow precedents that were decided incorrectly. But if that is what stare really requires, it is puzzling. What could justify a principle that requires courts to make the same mistakes over and over again, rather than correct them? This chapter argues that neither of the values commonly invoked to justify stare decisis — efficiency and fairness — could justify such a practice. Instead, it argues that stare decisis must be understood as serving the value Ronald Dworkin called integrity. The chapter also argues that the central demand of stare decisis is not that courts follow precedents, right or wrong, but that courts take their history seriously and answer to it.

This chapter critically examines the most prominent theories which social scientists and legal scholars have developed to explain the role of precedent in constitutional law. It shows that legal variables matter more to the outcomes of cases than social scientists typically acknowledge, but less than many legal scholars claim. Nor, for that matter, have legal scholars been able to dismiss altogether the relevance of external factors to constitutional decision making, including the justices' personal attitudes about constitutional law and policy preferences.

This chapter provides a defense of analogical reasoning by linking it to standard pragmatic virtues that guide us in the choice of scientific theories. The idea is based on a high‐level analogy between science and the law. In case law, the basic justification for stare decisis (following precedent) is that it promotes consistency and predictability while still permitting the evolution of the legal system. We seek an analogous balance when we turn to plausibility arguments in science. It is argued that analogical arguments that satisfy the general principles of the articulation model strike an excellent balance between conservative epistemic values (such as simplicity and coherence with existing theory) and progressive epistemic values (such as fruitfulness and theoretical unification).

This chapter provides a detailed overview of the Supreme Court's handling of precedent from the Jay Court through the Rehnquist Court. It examines the principal patterns in the justices' approach to precedent, particularly the different tests they have used to reevaluate their precedents. Moreover, it discusses some basic data with respect to the Court's overruling of precedent, and concludes with an examination of the many ways in which the justices weaken precedents without explicitly overruling them.

Building on the theoretical model of Chapter 3, this chapter seeks to assess whether “law” affects judicial decisions independently of policy preferences. Numerous legal doctrines may shape judicial decision-making, including stare decisis, originalism, plain meaning, the promotion of democratic participation, and doctrines with regard to specific elements of the Constitution such as the Bill of Rights or the commerce clause. The chapter concentrates on three legal doctrines (stare decisis, strict interpretation of the Constitution, and judicial restraint) that are both prominent and clearly more likely to play a role in structuring decision-making on some cases than on others. These doctrines are not necessarily canons of jurisprudence that are universally shared; they are principles that are widely acknowledged in the legal world as appropriately influencing constitutional interpretation.

This introductory chapter considers the constraints faced by Supreme Court justices. It begins by discussing the attitudinal model, which assumes that justices are “decision makers who always vote their unconstrained attitudes.” It then turns to three legal principles that might constrain justices: stare decisis, judicial restraint, and strict construction of the Constitution. Stare decisis is the doctrine that decisions should be consistent with past decisions. Judicial restraint implies that justices should defer to elected officials as much as possible within the bounds established by the Constitution. The remainder of the chapter deals with external constraints followed by an overview of the subsequent chapters.

This chapter discusses how historical context and personal experiences influence the legal values of justices, but the connections are imperfect and unpredictable. It argues that legal values are not independent of politics. As legal regimes evolve, so too do the patterns of legal values that justices hold. Adhering to these legal values may lead justices to vote against their immediate policy preferences. Once a justice subscribes to a doctrine, it does indeed act as a constraint. But justices typically associate themselves with legal values that tend to promote their favored outcomes. Personal experiences also shape a justice's support for stare decisis. Whether previous experience is measured in federal or total terms, justices who had more experience as a judge before coming to the Court show higher levels of influence by precedent.

This paper is the first part of a much longer version (co-authored by Maragaret McCown) that was presented at the Colloquium on Law, Economics, and Politics, at the Law School, New York University, in October 2000; it is one of two that examine some of the problems posed by the method of law-making that is associated with the rule of precedent and the common law doctrine of stare decisis. Stone Sweet provides explicit theoretical foundations for the path dependence of legal institutions, and an argument as to why this should matter to social scientists and to lawyers. The paper elaborates a model of adjudication in which institutional development and decision-making are linked through highly organized discursive choice-contexts – meso structures called ‘argumentation frameworks’, which are curated by judges as legal precedents. Litigants and judges are assumed to be rational utility-maximizers, but they are also actors who pursue their self-interest in discursive ways, through argumentation and analogic reasoning, and sustained, precedent-based adjudication leads to outcomes that are both indeterminate and incremental: i.e. they are path dependent. The paper concludes by addressing various implications of the argument which, taken together, define an agenda for research.

The spate of recent investment arbitration cases against repeat-respondent States, as well as the increasingly strident legal and political pushback these cases have begun to engender, call into question in various ways whether ICSID arbitration will continue to be a useful and legitimate forum for resolving international disputes. This chapter evaluates the continued viability of ICSID arbitration in light of these developments. Section A describes the relative legal finality and binding nature of ICSID awards as compared to other forms of adjudicating international disputes and observes that an individual ICSID award entails one of the legally most final and binding dispositions in international law, subject only to a few narrow ‘remedies’ against an award (the most notable being annulment). Section B describes that there is no formal general doctrine of binding precedent or stare decisis in ICSID arbitration and thus how an ICSID award, final and binding though it may be for an individual case, does not bind subsequent tribunals faced with the same or similar issues. Finally, it discusses the recent decision by the ad hoc (annulment) committee in CMS Gas Transmission Co v Argentine Republic, which shows that the ICSID system not only maintains the finality of individual awards, but also provides an opportunity for such a committee at least to comment on the reviewed tribunal's application of the law in a particular case and thus contribute to the corpus of international investment law.

Although not traditionally viewed as an element of judicial activism, the oft-quoted phrase “legislating from the bench”—commonly employed in political debates over activism—implies the notion that activist judges make rather than interpret law. Certainly, this concern is most pronounced in situations in which the judiciary overturns existing precedent, since this form of judicial action represents an outright acknowledgment that the earlier decision was incorrectly decided and that the Court, rather than Congress, is the appropriate institution to alter existing legal rules. For these reasons, the chapter addresses the individual justices' votes to overrule existing Supreme Court precedents. Here the chapter finds that several justices are far more likely to vote to overrule precedent explicitly, with Justices Scalia, Thomas, and Kennedy most willing to vote to invalidate an existing Court decision.

The introduction provides an overview of the basic arguments in the book. It explains basic terminology used in the book and the likely significance of the book in the voluminous literature on precedent in constitutional law.

This chapter joins recent nineteenth-century legal history scholarship in reconsidering the history, function, and theory of the common law through a long-overdue inquiry into the nature of legal precedent and its narrative forms, the law reports. It shows that these awkward, often unreadable, case law narratives are in fact a product of a long discursive tradition, that their insular and skeletal forms enable the process of precedential reasoning and arguing. Read in their historical, legal, and narrative contexts, the anti-narrative form of the reports reveals how they negotiate the larger socio-political challenges to the legal culture in which they function. Negotiating between the new orthodoxy of positive law and the still powerful common law, precedent reveals the intricacies of nineteenth-century legal pluralism. By negotiating the tension between a concrete case and the abstract rule which is its potential precedent, anti-narrativity enables the communal (if contradictory) nature and goal of precedential reasoning: the creation of a stable common law, dating from “time immemorial.” Anti-narrativity thus constitutes and reveals the (troubled) narrative form of the (troubled) legal doctrine of stare decisis in the Victorian period; it also reconsiders the role of narrative in law.

In the conclusion Gerhardt reviews the basic arguments made throughout the book about the role of precedent in constitutional law, as well as the ramifications of the Roberts Court's handling of precedent in its first two years. He suggests that the Roberts Court has been entirely predictable in avoiding direct overruling of precedents, weakening precedents which the majority does not like, and grounding its opinions largely (but not wholly) in precedent. Gerhardt reiterates the case for his comprehensive framework for explaining better than other current theories (or statistical studies) the multiple functions of constitutional law. One strength he identifies in his framework is the importance it places on candor as a means for justices and other constitutional actors to clarify the significance of precedent, as contrasted with judicial minimalism, which liberates justices from having to explain the reasons for (or implications of) their decisions.

This chapter examines the doctrine of stare decisis in relation to the first and the third constituency. It looks at the methodology of the European Court of Justice in distinguishing precedent, express and implicit overruling, and the quasi-normative effect of precedent. The picture that emerges is that of a judicial behavior which is close in result, albeit not in methodology, to that of Ango-Saxon supreme courts which adhere to the doctrine of stare decisis.

A theme running through all of Bentham’s jurisprudential writings is the conflict between the demands for stability and certainty of law and the need for flexibility in adjudication. Although he was keenly aware of the need for fixed rules for social conduct, Bentham regarded the principle of utility as the sovereign rational decision principle. Thus, he sought ways to constrain the decision-making of judges while leaving them room to respond to the constantly varying demands of utility in particular cases. The complex history of the development of Bentham’s theories of law and adjudication is the history of a series of increasingly sophisticated attempts to solve this central problem of utilitarian political and legal theory. This history begins to unfold in Bentham’s early reflections on justice, utility, and common-law adjudication. In these writings, Bentham defined the basic terms of the conflict, surveyed with remarkable insight the issues at stake, and proposed a unique utilitarian solution for his native common-law system. He soon became dissatisfied with this solution and this dissatisfaction set him on a course of increasingly deeper reflections on the nature of law and adjudication that eventuated in a complex and sophisticated jurisprudential theory. However, abandoning his initial solution did not signal that Bentham abandoned the principles underlying his early argument. Rather, he came to see that only a systematic arrangement of comprehensive codes—the “pannomion”—could hope to answer the demands of publicity on the law.

Using as a starting-point the series of cases involving Yugoslavia throughout the 1990s–2000s, this Chapter examines the Court's public declaration that it will adhere to a relatively strict rule of precedent. Examining critically the role and function of a rule of precedent within an organized legal system, this Chapter argues that adherence to its previous judgments by the Court represents both a claim to normative authority by the Court, in that its decisions are viewed as persuasive and rational statements of the law, and a systemic claim to safeguard the coherence of international law. The latter question is of particularly heightened importance in relation to the development of the international legal order.