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Monday, February 25, 2019

Two Kinds of Overruling: Teardowns and Cleanups

This term, the Court is confronting a range of stare decisis issues, including in cases that don’t exactly qualify as blockbusters. The contrast between these cases and last term’s relatively big overrulings in Janus and Wayfair got me thinking about different ways that the doctrinal stare decisis factors can play out. Here are some initial thoughts, with an invitation for comments and reactions.

Imagine that a court thinks a precedent is incorrect and is deciding whether to overrule it. In that situation, the court will naturally be drawn toward two basic dimensions of pragmatic impact: the harm of overturning the erroneous precedent and the benefit of adopting the correct legal rule. And we can further distinguish between scenarios where each of these variables is either large or small. Paradigmatically, the harm is large when a precedent has engendered reliance and small when it hasn’t; and the benefit is large if precedent is either unworkable or insensitive to importantly changed circumstances. 

The result is a simple two-by-two matrix.












Small [Overrule]



In two of the cells, it is fairly clear which way the analysis points, at least if we view cost/benefit analysis as relevant to stare decisis. When benefits are small and costs are large, it is probably a good idea to preserve the precedent. And when benefits are large and costs are small, it is probably a good idea to overrule the precedent.

But what about cases where the benefits and costs are both either large or small? I’ll call those cases teardowns and cleanups, respectively. In other words, a teardown is a case with large benefits and large costs; and a cleanup is a case with low benefits and low costs. For recent examples, we might take Janus as an illustrative teardown and the still-pending Hyatt as a cleanup. How should courts approach these sorts of cases?

One possible answer is that the deciding court should just figure out which variable is larger: benefits or costs. But what if the teardown or cleanup involves a cost/benefit analysis that is too uncertain or small to be decisive? In other cases, the court might feel strongly that the balance tips one way or the other while also realizing that many observers will fiercely disagree, perhaps for merits-relevant reasons. There, too, the Court might want to look further, in search of other, more widely appealing modes of argument.

Another potential answer is that the deciding court could rethink its decision to overrule and instead try to narrow the precedent, signal the precedent’s potential demise, or only partially overrule the precedent, in the hope of getting a more desirable cost/benefit ratio. But those options aren’t always available, sometimes because they’ve already been tried. At some point, the best or most viable options are either to overrule or not to do so.

There is a third possible answer: The court could look beyond the consequences of overturning the specific precedent at issue and consider the systemic effects of its decision. In other words, the court will wonder about how overruling today will contribute to a rule, pattern, or practice that will in the aggregate have a practical impact.  

The systemic effects that most point toward preserving precedent are captured by terms like stability. The intuition is that an overruling anywhere will degrade the force of precedent everywhere. You can see these modes of argument coming to the fore in both teardowns and cleanups. For instance, Casey, which some justices would have used to accomplish a teardown of Roe, rejected that move by going long on the aforementioned themes. And Justice Breyer’s oral argument comments in Hyatt, which again is a strong candidate for a cleanup, emphasized that one overruling tends to encourage litigants to seek many more.

Though less heralded, there are also systemic effects that support overruling. The watchword here is coherence. When precedent aligns with first principles or larger doctrinal patterns, it is often easier to learn the law, debate it, and predict its evolution. There are fewer exceptions, not as many conflicting principles, and less room to litigate. As a result, the expected costs of research and legal services could decline overall, and they might also become more evenly distributed, fostering equal access to justice.

Sometimes, the drive for coherence supports a bold departure from existing case law, yielding a comprehensive transformation. Brown might be an example: after chipping away at separate-but-equal, the Court initiated a teardown. At other times, coherence counsels in favor of bringing outlier rulings into line with a larger pattern of existing cases. Hyatt, if viewed as a cleanup of Nevada v. Hall, could qualify. 

The balance of systemic effects probably plays out differently in the context of teardowns as opposed to cleanups. Teardowns, after all, are generally much more salient than cleanups, due to their large effects. So a teardown is more likely to influence views held by the public at large, whereas awareness of a cleanup will usually be limited to a smaller group of affected people as well as legal sophisticates.

This salience differential suggests that the stability / coherence tradeoff might have different implications in the two contexts. For one thing, the public at large would probably have a harder time evaluating a ruling on any basis other than the appeal of the outcome, whereas sophisticates would be more likely to evaluate a ruling’s legal merits. If true, this point would suggest that whether a precedent is a doctrinal outlier should matter more when justifying cleanups like Hyatt as opposed to teardowns like Janus. Similar points could be made about other legalistic stare decisis factors, such as whether a precedent has come in for judicial criticism or proven unworkably difficult for courts to apply.

What kind of consideration is more likely to be suitable when justifying a teardown? By its nature, a teardown achieves what many will perceive as a transfer of wellbeing, away from people who like the precedent and toward the people who favor the new ruling. And, again, the legalistic merits of that transfer will likely be lost on the many lay people affected. So perhaps teardowns’ justifiability largely turns on whether the admittedly large costs they incur will be transitional as opposed to permanent.

Take the redistricting required by Reynolds v. Sims, which yielded a new, stable political order. Brown may also qualify, in that the country eventually came to accept formal school desegregation as a cornerstone principle of law. Teardowns would be harder to justify in cases like Casey where—at least as the lead plurality saw things—the Court was choosing between conflicting social views that would persist far into the future.

The Court has a number of opportunities to overrule this term, including in Hyatt, the prospective cleanup discussed above. I’ll try to circle round after the term is over to see how the Court’s reasoning lines up with the tentative framework outlined above. 

Posted by Richard M. Re on February 25, 2019 at 09:29 AM | Permalink


Interesting. Thanks, Richard. I have a one major question --- and a few related ones --- to try and understand the framework better.

Here's the big question: Do stability and coherence sit outside the 2 x 2, or are they a part of it?

If you mean for them to sit outside the 2 x 2, how is it that "coherence" isn't a benefit (or that instability isn't a cost)?

Or, if they're a part of the 2 x 2, why should we pay special attention to these costs or benefits as opposed to others? Is it their relatively "dynamic" effect on the system, beyond the "static" costs/benefits of any given decision (to loosely borrow an analogy)? Something else?

Posted by: Scot Free | Feb 25, 2019 3:45:03 PM

Speaking of which,here a fresh one,in jurist and links therein(not dealing with precedent or alike, but just showing the time/ social impact):

"Federal judge rules all-male military draft unconstitutional"



Posted by: El roam | Feb 25, 2019 2:47:12 PM

Just to illustrate the issue of restricted zones,with the famous case at the time of Korematsu v. United States ,one may read here( syllabus,summary, and the case itself respectively):





Posted by: El roam | Feb 25, 2019 2:28:44 PM

And here, the recent ruling of the Supreme court(South Dakota V. Wayfair)revealing, how the Internet,impacts,tax collection and inter states commerce of course:



Posted by: El roam | Feb 25, 2019 1:28:47 PM

Interesting. But it seems, that in terminology terms, the respectable author, refers rather to landmark rulings ( as precedents ) over encompassing the daily routine of relying on " ordinary " rulings, for having guidelines for prevailing in case. No effective difference between them both of course.

The author of the post, refers to cost/benefit as the main factor in changing or re - ruling in a precedent. But, there are other dominant factors, that oblige the court, to overrule one precedent or alike, and no matter what is the cost/benefit :

We could take technology ( the sudden invention of the Internet ) can it leave any choice ?? But, let's take more important one :

The absolute shifting from one value or moral perception, to a polarized one. And here negligible illustrations :

Once, homosexuality, has been considered as mental disorder ( formally so ). Can a judge today, rely upon an expert testimony even, and treat so homosexuals ?? No way !! So, almost total shifting, what ever the cost/benefit !!

At the time, in the second world war, Japaneses citizens ( in the US ) were restricted in their movement, and even concentrated in camps. Why ?? Japan was the enemy !! Today :

Well, right after the terrorist attack, on the twin towers ( September the 11th ) one of the first things, Bush the Junior did, was in fact :

To visit a mosque, and illustrate sort of sympathy towards Muslims in the US, in order to calm down the atmosphere, and prevent rise of hate crimes ( among others for that ). But, to restrict them or their movements ?? No way ( and as well courts ). So, a sort of absolute shift, from one moral perception, to another, no matter cost / benefit.

Links :

Bush visiting mosque :


And here, ruling, district court ( New Jersey ) concerning surveillance of Muslims, after twin attack :



Posted by: El roam | Feb 25, 2019 12:57:37 PM

Thanks, Joseph! I think I've corrected.

Posted by: Richard | Feb 25, 2019 11:48:05 AM

Are things in the right box? The paragraph below the table, and the box entries, don't seem to me to agree.

Posted by: Joseph Miller | Feb 25, 2019 10:39:10 AM

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