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Imagine the Supreme Court issuing an emergency order that signals interest in departing from precedent, as if foreshadowing a change in the law. Seeing this, should the lower courts start ruling in ways that also anticipate the law of the future? They need not do so in their merits rulings. That much is clear. Such a signal does not create new binding precedent. Rather, it reflects the Justices’ guess about the future of the law — and what if that guess is wrong?

Yet for a lower court ruling on a temporary stay or injunction, the task seems to call for a guess about a future decision and hence a future state of the law. And if the Justices have already made such a guess in a parallel case, doesn’t the lower court have the answer it needs?

Not necessarily, this analysis shows. It looks closely at the architecture of stays and injunctions in the federal courts, while drawing upon ideas presented in a rich new compilation of essays, Philosophical Foundations of Precedent. Intriguing questions for theory arise, in turn. For instance, should an earlier judicial guess ever be deemed binding on a later guess? That would not be stare decisis, of course — but could there be such a thing as stare divinatis?


Courts | Law | Supreme Court of the United States


Philosophical Foundations of Precedent edited by Timothy Endicott, Hafsteinn Dan Kristjánsson, and Sebastian Lewis, New York: Oxford University Press, 2023, pp. 576, $180.00.

This article originally appeared in 124 Colum. L. Rev. 851 (2024). Reprinted by permission.