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

Pintip Hompluem DunnJudges are "liars."'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 1.