And while I’m on the subject of the Supreme Court could any of the legal eagles out there comment knowledgeably on this court’s attitude towards stare decisis? It seems rather mercurial to me, especially in light of the Court’s decision on the legality of resale price maintenance agreeements (which I would have thought would have received a lot more attention than it has).
I think there has always been a tension between two concerns:
1. The rule of law requires consistency and as society becomes reliant upon a court’s ruling, the status quo should be maintained to avoid harms from arbitrary change.
2. Over time circumstances may change, so that a prior ruling may no longer be workable or justified by its initial underpinnings.
(1) suggests that the longer a rule of law has been in place, the more inviolable it becomes, while (2) suggests the opposite.
The whole point of the law is that it be consistent and consistenly applied such that when a similar case, with similar facts comes up, the judges have a place to look to apply the law. But law is a comparative exercise, i.e. a current judge looks for cases similar to teh current one, but case law is heavily fact dependent, if the facts are a little different it might not mean anything and the rule would be the same. On the other hand, one little fact change may completely alter the case such that the outcome would be very different. A case in point is the Bong Hits 4 Jesus case. If the Court had found that the event where the banner was displayed was not school sanctioned, the case could have turned out very different.
Stare decisis means more or less what the judge wants it to mean with teh facts at hand. PD Shaw is correct with his comments, but cases and rulings are heavily dependent on the facts and if a judge thinks one fact is important enough, stare decisis wouldn’t necessarily apply.
Lots of fun huh?