How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis

By Dunn, Pintip Hompluem | The Yale Law Journal, November 2003 | Go to article overview

How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis


Dunn, Pintip Hompluem, The Yale Law Journal


Judges are "liars." (1) They "routinely engage in delusion." (2) They occupy a paradoxical position in this world, one in which their function requires them to make law, while their legitimacy depends on the fiction that they interpret law. (3) It is a strange fiction, but it is a necessary one. The legitimacy of the judicial system requires that the rule of law be above the whims of the individual personalities who happen to occupy positions on the Supreme Court at any given time. Rather, the rule of law must be grounded in objective analysis and immutable logic, reasoning that does not change with the changing of personnel. Otherwise, there would be no reason to accept the decisions of the Court as the governing framework for our society.

Judges sustain the fiction that they interpret law, but never create it, by adhering to the doctrine of stare decisis. Stare decisis states that judicial decisionmaking should adhere to precedent. Precedent provides a source external to the judges' individual opinions that legitimizes their reasoning, supplying ready evidence that judicial decisions are based on more than individual whim. After all, there is a certain amount of security in trusting precedent. Assuming that judges in a series of decisions have conducted independent analyses to confirm their predecessors' views, and that such a series comprises a collective judgment, precedent should be more trustworthy than an individual judge's opinion. (4)

But on occasion, judges depart from precedent, (5) and when they do, the fiction of interpretation begins to fall apart. After all, when judges overrule a previous decision, they do more than disagree with that decision; they assert an individual position and reject the external substantiation of their opinion.

How, then, can judges maintain their legitimacy when they overrule? This Note attempts to provide an answer by looking at the doctrine of stare decisis through the framework of J.L. Austin's speech act theory. Specifically, this Note argues that Austin's theory allows us to view the act of ruling as a discrete performative utterance that requires certain conditions to be fulfilled before it can function properly. As an atypical application of the general act of ruling, the act of overruling requires its own set of conditions before it can achieve legal force. This Note identifies and explores those conditions.

Part I describes J.L. Austin's speech act theory and, in particular, the constative and performative aspects of speech. Part II argues that while judges enact the constative fallacy, pretending that they are interpreting rather than creating the law, they execute an explicit performative utterance every time they make a ruling. In order for the ruling to have force, however, several felicity conditions must be fulfilled, among them the legitimacy of the Court in making the ruling. In Parts III-V, I examine the ways in which the Court meets this challenge.

In conducting my analysis, I examine cases from the last three decades in which the Supreme Court has overruled an earlier constitutional case. (6) To generate this list, I use the thirty-three cases listed in the majority opinion in Payne v. Tennessee to denote constitutional decisions the Supreme Court overruled in the two decades from 1971 to 1991. (7) In addition, to span the years 1991 to 2002, I use the list of overruled cases contained in The Supreme Court Compendium (8) and the Congressional Research Service's Constitution of the United States of America: Analysis and Interpretation. (9)

This sample set includes only those cases that overrule a previous constitutional decision. The doctrine of stare decisis operates under slightly different principles when the case involves statutory construction or procedural rules. Judges and academics have viewed cases turning on statutory construction as more constrained by precedent than cases of constitutional adjudication, (10) while they have viewed cases focusing on procedural rules as less constrained. …

The rest of this article is only available to active members of Questia

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

How Judges Overrule: Speech Act Theory and the Doctrine of Stare Decisis
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Help
Full screen

matching results for page

    Questia reader help

    How to highlight and cite specific passages

    1. Click or tap the first word you want to select.
    2. Click or tap the last word you want to select, and you’ll see everything in between get selected.
    3. You’ll then get a menu of options like creating a highlight or a citation from that passage of text.

    OK, got it!

    Cited passage

    Style
    Citations are available only to our active members.
    Buy instant access to cite pages or passages in MLA, APA and Chicago citation styles.

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

    "Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

    1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

    Cited passage

    Thanks for trying Questia!

    Please continue trying out our research tools, but please note, full functionality is available only to our active members.

    Your work will be lost once you leave this Web page.

    Buy instant access to save your work.

    Already a member? Log in now.

    Oops!

    An unknown error has occurred. Please click the button below to reload the page. If the problem persists, please try again in a little while.