The Internal and External Costs and Benefits of Stare Decisis

Abstract

Far from merely providing judges with a useful decision-rule, the doctrine of stare decisis reflects the fundamental values of the legal process and the primordial tension within the common law between change and stability. For economists who do research on legal topics, stare decisis should be of particular interest for a variety of reasons. To begin with, the study of stare decisis may provide valuable insights into the way the judges actually go about deciding cases. Economists have had virtually nothing to say about judicial decisionmaking in general or stare decisis in particular. There simply are no economic theories at all to explain how "independent" judges, whose incomes are not contingent on the outcomes of cases, go about making decisions. A study of stare decisis is therefore of interest to economists because it provides insights into the preference patterns and utility functions of judges. In addition, the topic sheds light on the dynamics between the various hierarchies of courts, and illustrates the complex web of information transferred among judges, lawyers and litigants.