Selected Topics in Jurisprudence
Systems that rely heavily on decisional law challenge the judges who produce that decisional law to strike a viable balance between (a) continuity with the past and (b) adaptation to the present (and future). The doctrine of stare decisis (from the longer Latin expression “stare decisis et non quieta movere”) is, especially in its horizontal form, a key locus for striking that balance. This is especially so on the occasions when an apex court (such as the Supreme Court of the United States) considers overruling one of its prior decisions. “Stare decisis is,” after all, “ordinarily a wise rule of action. But it is not a universal, inexorable command.” Washington v. W.C. Dawson & Co., 264 U.S. 219, 238 (1924) (Brandeis, J., dissenting). In this seminar, the paper for which meets either upper-level writing requirement, we examine in depth both stare decisis and the larger common-law process surrounding it. We consider both private law and public law settings, raising statutory and constitutional questions. We also consider comparative materials, from both common-law and civil-law systems. Whatever your favorite area of law may be, in this seminar you can reflect more deeply on its stare-decisis-based internal structure by writing your paper in that subject-matter area.