Stare Decisis: What It Is, Why It Is Important, And More Controversial Than You Might Think (Oh, And Spider-Man)

Stare decisis might be the first Latin legal term you learn in law school.  It was for me.  But like all Latin terms, you quickly find an English equivalent: judicial precedent. The concept is both simple and complex, straightforward and convoluted.  It will be the subject of this post; it's also the subject of the book pictured above, all 910 pages of it.  I will attempt to make stare decisis--judicial precedent--a concept you can understand and maybe even apply.  And Spider-Man will help.

First, the simple.  "Stare decisis" is Latin for "stand by things decided".*  In the simplest of terms, it is the doctrine of precedent, which is when an issue is brought to the court that has already been decided and there is a precedent--a case decided by the court that answers the issue before it--to that effect, and that is how the case should be decided.  If I am bringing a case about X and the court can point to a case that has already decided X (a precedent) I will either win or lose depending on whether the case that decided X is in my favor.  The court has no need to reexamine X; they "stand by things decided".  And not only does that precedent exist, but the doctrine obligates judges to respect and adhere to the precedent established by prior decisions.

It's not hard to see the benefits of the doctrine.  Following precedent makes the law both knowable and predictable, which makes the administration of the legal system more evenhanded and consistent and fosters an overall reliance on judicial decisions and contributes to the integrity (actual and perceived) of the judicial system.  But there are critics of stare decisis; we'll talk about them in a moment.

Now for the complex.  Stare decisis works both vertically and horizontally.  In vertical stare decisis, all lower courts are required to follow the decisions of courts exercising superior jurisdiction.  For example, the federal court of appeals for the Third Circuit is required to follow Supreme Court precedent; the federal district court in Delaware is required to follow both Supreme Court and Third Circuit precedent, Delaware being in the Third Circuit.  You can see why this has to be the case: stare decisis--precedent--makes no sense otherwise.  But stare decisis also acts horizontally.  In horizontal stare decisis, a judge (or group of judges) is bound by (or at least must respect) decisions of the court on which they sit.  The Supreme Court is bound by its own decisions (precedents).  Federal courts of appeals are a bit more complicated.  A three-judge panel (the norm for courts of appeals) is bound by prior decisions of the same circuit, while the court sitting en banc (the entire court) can overrule its own precedent (and of course the Supreme Court can do that too), but a separate three-judge panel (different from the original panel that decided the precedent) cannot overrule it.  

And just to round out the court system, there is the interaction between state and federal courts as it applies to precedent.  First, state courts are not inferior to federal courts, that is, the state courts are a parallel court system,  So when a federal court rules on an issue of state law, the federal court must follow the precedent of the state court.  On the other hand, when a state court takes on an issue of federal law, they are only bound by the rulings of the Supreme Court, not by the federal circuit court in which they sit or by any decision of the federal district courts in the state.  This is what the rules governing precedent require. In practice, courts in each system tend to follow the relevant case law from the other system in order to keep uniformity and to minimize what is called forum shopping (bringing your case where you think you will get a more favorable result.  See this LII Wex entry for more details on this topic).

There is more to stare decisis, including how a case can be a precedent when applied to the issues or parties to that case but not to anyone else, what is called the "law of the case", but we'll leave that alone for now.  I want to focus on how stare decisis actually works in practice.

A classic example of the application of stare decisis is Kimble v. Marvel Entertainment, 576 U.S. ___ (2015), and here is where Spider-Man comes in.  I'll let Justice Kagan, who wrote the majority, tell the tale:

"In Brulotte v. Thys Co., 379 U. S. 29 (1964), this Court held that a patent holder cannot charge royalties for the use of his invention after its patent term has expired. The sole question presented here is whether we should overrule Brulotte. Adhering to principles of stare decisis, we decline to do so. Critics of the Brulotte rule must seek relief not from this Court but from Congress.

In 1990, petitioner Stephen Kimble obtained a patent on a toy that allows children (and young-at-heart adults) to role-play as “a spider person” by shooting webs—really, pressurized foam string—“from the palm of [the] hand.” U. S. Patent No. 5,072,856, Abstract (filed May 25, 1990). Respondent Marvel Entertainment, LLC (Marvel) makes and markets products featuring Spider-Man, among other comic-book characters. Seeking to sell or license his patent, Kimble met with the president of Marvel’s corporate predecessor to discuss his idea for web-slinging fun. Soon afterward, but without remunerating Kimble, that company began marketing the “Web Blaster”—a toy that, like Kimble’s patented invention, enables would-be action heroes to mimic Spider-Man through the use of a polyester glove and a canister of foam.

Kimble sued Marvel in 1997 alleging, among other things, patent infringement. The parties ultimately settled that litigation. Their agreement provided that Marvel would purchase Kimble’s patent in exchange for a lump sum (of about a half-million dollars) and a 3% royalty on Marvel’s future sales of the Web Blaster and similar products. The parties set no end date for royalties, apparently contemplating that they would continue for as long as kids want to imitate Spider-Man (by doing whatever a spider can).

And then Marvel stumbled across Brulotte, the case at the heart of this dispute. In negotiating the settlement, neither side was aware of Brulotte. But Marvel must have been pleased to learn of it. Brulotte had read the patent laws to prevent a patentee from receiving royalties for sales made after his patent’s expiration. See 379 U. S., at 32. So the decision’s effect was to sunset the settlement’s royalty clause. On making that discovery, Marvel sought a declaratory judgment in federal district court confirming that the company could cease paying royalties come 2010—the end of Kimble’s patent term. The court approved that relief,...The Court of Appeals for the Ninth Circuit affirmed, though making clear that it was none too happy about doing so. “[T]he Brulotte rule,” the court complained, “is counterintuitive and its rationale is arguably unconvincing.” 727 F. 3d 856, 857 (2013).

We granted certiorari to decide whether, as some courts and commentators have suggested, we should overrule Brulotte. For reasons of stare decisis, we demur".

Here we see how stare decisis works both vertically (the district court and the court of appeals were bound to follow Brulotte, even though the court of appeals thought it was a bad precedent) and horizontally (the Supreme Court followed it's own precedent and, despite widespread criticism of the Brulotte rule, declined to overrule it).  But the decision was 6-3. The dissent, written by Justice Alito, was very blunt:

Justice Alito, with whom The Chief Justice and Justice Thomas join, dissenting.

The Court employs stare decisis, normally a tool of restraint, to reaffirm a clear case of judicial overreach. Our decision in Brulotte v. Thys Co., 379 U. S. 29 (1964), held that parties cannot enter into a patent licensing agreement that provides for royalty payments to continue after the term of the patent expires. That decision was not based on anything that can plausibly be regarded as an interpretation of the terms of the Patent Act. It was based instead on an economic theory—and one that has been debunked. The decision interferes with the ability of parties to negotiate licensing agreements that reflect the true value of a patent, and it disrupts contractual expectations. Stare decisis does not require us to retain this baseless and damaging precedent.

Three justices would have overruled a 51-year old precedent, but six would not.  Why the dispute?  The Supreme Court has long held that merely concluding that a prior, precedential decision was wrongly decided, or disagreement with it, is not enough: there has to be a special justification to overcome the presumption in favor of upholding precedent.  The Court does not want to overturn decisions that have been longstanding, have created settled expectations, and that have created strong reliance interests. 

That does not mean that the Supreme Court will not overrule precedent: Brown v. Board of Education in 1954 overruled the "separate but equal" doctrine of Plessy v. Fergusson decided in 1896.  A purely mechanical application of stare decisis would have prevented that from happening.  And this is where the criticism of stare decisis comes into play.  Critics have pointed to stare decisis as too rigid, slowing down the needed developments in areas of the law that need a major overhaul.  It is also criticized for being undemocratic, allowing non elected judges to make law.  And it is also viewed as subversive in the area of constitutional interpretation.  An opinion may start out as being only slightly at odds with the Constitution, but over time the error can grow through more interpretation of what is now regarded as a precedent so that it is now greatly different from the Constitution.

I'll conclude with the wise words of Justice Cardozo (although it is in a dissent):

Stare decisis is not ... a universal, inexorable command. "The rule of stare decisis, though one tending to consistency and uniformity of decision, is not inflexible. Whether it shall be followed or departed from is a question entirely within the discretion of the court, which is again called upon to consider a question once decided." Stare decisis is usually the wise policy, because in most matters it is more important that the applicable rule of law be settled than that it be settled right. This is commonly true even where the error is a matter of serious concern, provided correction can be had by legislation. But in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overruled its earlier decisions. The Court bows to the lessons of experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function.

Burnet v. Coronado Oil & Gas Co., 285 U.S. 393, 405-411 (1932).

I hope this helped you get a handle on stare decisis.  You can read more here.  Or I have a 910-page book I can recommend.  

* The complete Latin maxim is: Stare decisis et non quieta movere: "to stand by decisions and not disturb the undisturbed".       


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