Academic journal article Albany Law Review

Do Precedents Take Precedence? Stare Decisis and Oregon Constitutionalism

Academic journal article Albany Law Review

Do Precedents Take Precedence? Stare Decisis and Oregon Constitutionalism

Article excerpt

There is often unavoidable tension between state constitutionalism and stare decisis. Recognition of the principle that state constitutional provisions have independent legal significance frequently runs counter to a significant body of case law decided under the assumption that parallel provisions of the state and federal constitutions have the same meaning. (1) Strict adherence to stare decisis would preclude a court from departing from such "lockstep" adherence to federal constitutional analysis. (2) At the same time, it would saddle the courts with precedents that are often demonstrably at odds with the language and intended meaning of the state constitution.

The virtues of stare decisis are well known. (3) Adherence to precedent promotes stability and predictability in the law. (4) It ensures that similarly situated people will be treated similarly.

But it should not be forgotten that stare decisis is judge-made policy. Adherence to precedents is not constitutionally required (except, perhaps, indirectly to the extent that capricious failure to adhere to precedents can run afoul of constitutional requirements of equal treatment or due process). (5) And strict adherence to the principle is not costless.

In a sense, strict adherence to stare decisis, at least in constitutional cases, can itself be unconstitutional. (6) Inflexible commitment to a prior constitutional decision that is demonstrably incorrect, for example, exalts a non-constitutional, judicially created policy of consistency over the constitution--properly construed--itself.

In my view, unbending adherence to stare decisis in state constitutional decision-making is unwise and untenable. (7) Sometimes, earlier cases were ill-considered or downright wrongly decided. The costs of adherence to such cases, in terms of the credibility of the courts and the legitimacy of their decisions, outweighs the benefits of blind adherence to them as a matter of precedent. Think about it. If courts were inexorably bound to precedent, Plessy v. Ferguson (8) would still be the law of the land.

I am aware that some have suggested that, in the case of state--as opposed to federal--constitutional decision making, the pull of stare decisis actually should be stronger. (9) State constitutions, the argument goes, are easier to amend than the federal Constitution. So, because erroneous state constitutional decisions can be relatively more easily remedied by constitutional amendment, the courts should feel more bound by their precedents.

I think such arguments are flawed. While the relative ease with which law may be amended seems a fair consideration, it is not clear to me that the benchmark is the difficulty with which the federal Constitution may be altered. More pertinent, it seems to me, is the fact that the state constitution is the highest source of law in the state and, compared with other sources of state law, remains difficult to amend. (10)

That does not mean that state courts should be free to reconsider, willy-nilly, any and all prior cases simply because those courts would have preferred a different outcome. There must be principles that govern the exercise of a court's judgment about whether, in a given case, the costs exceed the benefits of adherence to precedents.

The Oregon Supreme Court has wrestled openly with these questions in the last several years. The court moved from a more rigorous adherence to the principle of stare decisis to a more nuanced and flexible approach to the pull of precedent in state constitutional cases. The result has been a fair amount of housecleaning, as the court has unhesitatingly overruled a number of prior state constitutional decisions. A review of the court's recent decisions, however, reveals that it has been cautious to jettison prior cases only when circumstances warrant.

For a number of years, the Oregon Supreme Court rigorously followed the doctrine of stare decisis. …

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