Nina Varsava, Stare Decisis and Intersystemic Adjudication, 97 Notre Dame L. Rev. 1207 (2022)
Abstract
Interpreting and following precedent is a complicated business. Various reasonable but conflicting methods of ascertaining the legal effect of precedent exist. Differences between practices of precedent or doctrines of stare decisis are particularly salient between legal systems or jurisdictions. For example, a state’s judges might embrace different stare decisis norms than federal judges. This situation presents a major quandary for intersystemic jurisprudence that has been largely overlooked in the scholarly literature.
Are law-applying judges in the intersystemic context bound by the law-supplying jurisdiction’s methods of interpreting precedent? For example, when the Seventh Circuit Court of Appeals adjudicates a question of Wisconsin state law, do the federal judges have to adopt the interpretive methodology that Wisconsin judges apply to judicial decisions? It is well-settled that the federal judges have to apply Wisconsin precedent, but whether the federal judges have to apply Wisconsin’s doctrines of stare decisis is an open question. Since these doctrines may be highly outcome-determinative, the intuitive answer would seem to be that they are indeed interjurisdictionally binding. That answer, however, is too quick.
As this Article documents, in practice judges often do not defer to the law-supplying jurisdiction’s stare decisis doctrine. Although this lack of deference may seem inappropriate, it is not always or necessarily a mistake. This Article presents a novel theory of stare decisis and interpretation in the intersystemic context, which connects the deference quandary to jurisprudential debates about the very nature of law, showing how different legal theories generate different answers to the question of whether, in a given case, methods of interpreting precedent are interjurisdictionally binding. The Article thus illuminates the integral relationship between analytical jurisprudence and a ubiquitous but undertheorized quandary about intersystemic adjudication.
