Chicago Journal of International Law

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The doctrine of stare decisis famously instructs judges to respect past decisions even if they believe these decisions are wrong. Many believe stare decisis serves venerable values and bemoan its apparent demise in various apex courts around the world. But can something like stare decisis appear in politics too? In other words, can we expect public officials, much like we expect judges, to also adhere to past decisions even if they think these decisions are wrong? Or when they face temptations to ignore the past?

If we rely on our normal intuitions about politics, or observe its current state around the world, the answer seems to be “no.” And while previous scholarship presents a more qualified view, this literature is greatly incomplete. It focuses on a limited set of domestic and international institutions that primarily resemble judicial ones. Alternatively, this scholarship is preoccupied with the normative or interpretive question of how domestic and international courts should incorporate what looks like a political analogy to stare decisis into legal doctrine. As a result, we are left uncertain about how broad the phenomenon of constraint by the past in politics really is. We are also left unsure about where the phenomenon is likely to appear, how exactly it operates, and what we might be able to do to achieve more (or less) of this type of constraint. In a world where so much of what seems wrong in domestic and global politics appears connected to the rushed erosion of the past, or its increased stickiness, this omission is significant.

This Article fills this gap by offering a comprehensive explanatory and functional theory of the role of the past as a constraint in domestic and global politics, or, in short, a theory of political stare decisis. Given the stakes of the past in politics today, the Article suggests what public officials and institutional designers in domestic and international politics might be able to do to deliberately “tinker” with political stare decisis. For example, how officials can establish entirely new political precedents that will constrain in the future, how they might strengthen existing political precedents that they like (or weaken political precedents they dislike), and what solutions are generally available to make political stare decisis more robust.

The Article concludes with a more jurisprudential point. While much in the discussion demonstrates that political stare decisis and the more familiar institution of judicial stare decisis substantially diverge, the Article claims that these differences may be much less meaningful than meets the eye. Instead of completely divergent practices, judicial stare decisis may ultimately be nothing more than one species of political stare decisis. The Article argues that acknowledging this fact significantly improves our understanding of judicial stare decisis. Among other things, it shows us when judicial stare decisis is “for suckers” and when it is not; it flags new ways to strengthen judicial stare decisis in jurisdictions where it seems to have dramatically weakened; and it illuminates how those who work to achieve their goals through domestic and international courts and their precedents should appropriately (and effectively) approach this task.

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