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Tuesday, July 09, 2019

Stare Decisis Is Undertheorized

A major theme of the most recent Supreme Court Term was stare decisis. Several cases either overruled precedents (over dissents) or refused to do (over dissents) with each side chastising the other for its approach to precedent. After reading these opinions, as well as other judicial and academic commentary, I'm struck by how little useful analysis there is about stare decisis. In some future posts, I'll try to explain what I mean by that, as it will help me think through some aspects of the doctrine. 

Posted by Gerard Magliocca on July 9, 2019 at 10:22 PM | Permalink


I would also recommend a new paper by Chas Tyler (Stanford Law), recently posted to SSRN.

Posted by: Mark Storslee | Aug 15, 2019 12:31:19 PM

I second the recommendation of Randy Kozel's book, "Settled v. Right."

Posted by: Richard Garnett | Jul 16, 2019 1:28:53 PM

It's certainly the case that it's undertheorized, although in part, I suspect b/c it is so hard to wrap one's head around what we might be thinking we really mean by it. I'll be interested to read Gerard's and Peter's thoughts about it.

When I think of theories of SD, though, my mind immediately goes to Kornhauser's classic work on the topic.

Posted by: Nicholas Almendares | Jul 12, 2019 12:03:04 PM

Sorry correct link is https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3346777

Posted by: Peter Nicolas | Jul 11, 2019 12:38:30 AM

I have a forthcoming article, entitled Reconstruction, that might address your concern (https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3346777).

Posted by: Peter Nicolas | Jul 11, 2019 12:36:18 AM

In 1949, stare decisis referred to Plessy v. Ferguson. In 2019, stare decisis refers to Roe v. Wade.

Generally speaking, nobody cares about stare decisis anymore than they care about traditions-in-general or novelties-in-general. People like traditions they like, and people like breaking with traditions they dislike (trying new things they like).

In the same way, people want to preserve judicial opinions they like and want to overrule decisions they dislike. If people want to preserve most supreme court precedent, we call them conservatives--Ginsburg, Breyer, Kagan. If they want to overrule a great amount of supreme court precedent (or just create a lot of new precedent), we call them revolutionaries--Warren, Douglas, Black, Marshall.

Since democrats won and now are trying to preserve their victories, they are conservatives--because for some reason there's no preservative party.

Posted by: Preservatives | Jul 10, 2019 6:22:28 AM

I would guess that stare decisis is less-often written about relative to its importance for two reasons.
First, legal academia tends to respect and reward developing first principles on what is normatively correct. From that perspective, stare decisis doesn't have a lot of academic cache. Second, most people care most about stare decisis when it comes to big questions of con law, and in those areas many tend to have an on-again, off-again relationship to it that makes it hard to theorize about it. For too many, it seems to me, whether stare decisis is valuable depends on whether you think the other side has five votes.

Posted by: Orin Kerr | Jul 10, 2019 4:50:44 AM

Correct.But the Q is always back to the issue:

For,all Justices agree about the importance of legal stability (formed by stare decisis). What they don't agree on,is not the doctrine itself , but in light of given case, what takes over:

Stability and reliability,or:the need to fix it,to remedy legal custom,wrongly implicated or decided.


Posted by: El roam | Jul 10, 2019 4:49:27 AM

Randy Kozel's new book and associated articles* seem to be major contributions.

* For example, https://texaslawreview.org/statutory-interpretation-administrative-deference-and-the-law-of-stare-decisis/

Posted by: Asher Steinberg | Jul 10, 2019 12:29:35 AM

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