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Truth Through Combat

Judicial Consistency

Another question that must therefore be addressed in order to understand the possiblity of a rational discourse between legislators and judicial nominees is the following: to what extent is consistency a requirement of judicial reasoning?

The answer is interesting: consistency is a casuistic requirement. That is, consistency is a requirement in each and every case, each and every time. The decisions of a case must always be consistent with at least some prior decisions.

Consistency is therefore not identical with stare decisis. It is not the doctrine of precedence. Rather, consistency is a demand that cases be decided in a manner consistent with some case, even if not all cases. This is what makes it possible to reject precedents, therefore: they are seen as weaker than other precedents and can therefore be rejected. Courts therefore structure reasons for their decisions by putting together some consistent legal story that justifies the decision in question.

When the requirement for consistency is a casuistic requirement that doesn’t necessarily stretch across cases, the law becomes balkanized and the legal universe is split into spheres of law that are not always consonant with one another. Legal standards prevalent in tort law are not present in family law; 1st-amendment law makes commitments to principles that are unlike the principles made in antitrust law. This all means that consistency is a limited requirement, with limits that become more and more stringent the further away you get from the individual case and towards some wholly different area of the law. Within the individual case, the requirement of consistency is plenary; within the individual area of law, consistency is still a strong requirement; when dealing with two completely different areas of law, however, consistency is a rather unimportant requirement.

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