Integrity and Stare Decisis

Scott Hershovitz, University of Michigan Law School

Reproduced by permission of Oxford University Press . DOI: https://doi.org/10.1093/acprof:oso/9780199546145.003.0006

Abstract

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.