THE MYSTIFICATION OF STARE DECISIS IN MCCORMICK V. CARRIER: THE TRANSFORMATION FROM A PRINCIPLE OF POLICY TO A RULE OF LAW

Joseph F. Sawka, Seventh Circuit Court of Michigan

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Abstract

In McCormick v. Carrier, 487 Mich. 180 (2010), the Michigan Supreme Court interpreted the phrase “serious impairment of body function” and, in a 4-to-3 decision, overturned the 2004 decision of Kreiner v. Fisher, 683 N.W.2d 611 (Mich. 2004) that had interpreted the same language. While the decision is significant for Michigan’s no-fault insurance laws, it also brings to the forefront the heated controversy regarding the interpretation and application of stare decisis in the Michigan legal system. The Justices of the Michigan Supreme Court were divided over the proper application of stare decisis: Justice Cavanagh spoke for his and Chief Justice Kelly’s view in the majority opinion, Chief Justice Weaver and Hathaway each wrote separately to address the topic of stare decisis, and Justice Markman, writing for himself and Justices Young and Corrigan, devoted a substantial portion of the dissent to the doctrine. The various approaches and legal theories employed in McCormick present a perplexing conception of stare decisis, particularly when analyzed in conjunction with prior decisions of the Michigan Supreme Court over the last decade. As a result, the doctrine of stare decisis, while labeled a principle of policy by the Michigan Supreme Court, has transformed into a quasi-rule of law after McCormick. The judicial philosophy and practice represented in each Justice’s opinion illustrates that without recognizing stare decisis as a tool of judicial restraint, the stability, predictability, and deference to the law is subject to devastating results.