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58 N.Y.U. L. Rev. 1 (1983)
The Life Span of a Judge-Made Rule

handle is hein.journals/nylr58 and id is 21 raw text is: NEW YORK UNIVERSITY LAW REVIEW VOLUME 58 APRIL 1983 NUMBER 1 THE LIFE SPAN OF A JUDGE-MADE RULE JOHN PAUL STEVENS* Justice Stevens explores, the interplay between the rule of stare decisis and the Rule of Four that is followed by the Supreme Court in processing its certiorari docket. After examining the current status of the doctrine of stare decisis and remarking on its proper limits- as revealed in the legacy of the Jensen rule, Justice Stevens turns to the Rule of Four and amesses its susceptibility to change. INTRODUCTION Most of the rules that were taught to law students in my genera- tion were judge-made rules. The rule in Shelley's case, the rule against perpetuities, the hearsay rule, the Rule of Reason, the doctrine of consideration, and the concepts of foreseeability and proximate cause are a few that come readily to mind. Even though it may be one of the oldest of judge-made rules, however, I do not recall receiving any special instruction in the doctrine of stare decisis et non quieta mo- vere'-the doctrine that teaches judges that it is often wise to let sleeping dogs lie2-until after I had graduated, indeed, until after I became a judge. *Associate Justice, Supreme Court of the United States. This Article was delivered as the fifteenth James Madison Lecture on Constitutional Law at New York University School of Law on October 27, 1982. The doctrine of stare decisis et non quieta movere, to stand by the decisions and not to disturb settled points, developed during the infancy of our law. Historians agree that Bracton's Note Book, containing one of the first collections of English decisions, gave early impetus to the doctrine. Bracton did not understand the modem implications of stare decisis, but he directed the attention of the legal profession to past decisions in an attempt to bring back the law to its ancient principles. The first comprehensive law reports, the Year Books, not only constituted in and of themselves evidence of the importance of prior decisions, but they also contained progressively frequent reference to earlier cases and often a direct statement that certain cases were of some authority, such as the words of Chief Justice Priscot in 1454: If this plea were now adjudged bad, as you maintain, it would assuredly be a bad example to the young apprentices who study the Year Books, for they would never have confidence in their books if now we were to adjudge the contrary of what has been so often adjudged in the Books. Spreeher, The Development of the Doctrine of Stare Decisis and the Extent to Which It Should Be Applied, 31 A.B.A. J. 501-02 (1945) (footnotes omitted). - The Latin phrase was translated by Justice Goldberg to mean let the decision stand and do not disturb things which have been settled. A. Goldberg, Equal Justice 74 (1971). Justice Reed's rendition was: stand by the precedents and do not disturb the calm. Reed, Stare Decisis 1 Imaged with the Permission of N.Y.U. Law Review