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Kozel on Stare Decisis

By Lawrence Solum

Randy J. Kozel has posted Stare Decisis as Judicial Doctrine (Washington and Lee Law Review, Vol. 67, No. 2, 2010) on SSRN. Here is the abstract:

Stare decisis has been called many things, among them "a principle of policy," "a series of prudential and pragmatic considerations," and simply "the preferred course." Often overlooked is the fact that stare decisis is also a judicial doctrine, an analytical system used to guide the rules of decision for resolving concrete disputes that come before the courts.

This Article examines stare decisis as applied by the U.S. Supreme Court, our nation?s highest doctrinal authority. A review of the Court?s jurisprudence yields two principal lessons about the modern doctrine of stare decisis. First, the doctrine is comprised largely of malleable factors that carry neither independent meaning nor predictive force. Second, most of the factors that populate the doctrine are best understood as evincing, either explicitly or implicitly, a driving concern with the reliance interests that could be upset by the decision to overrule a given precedent.

When stare decisis is reconceptualized in terms of these reliance implications, there emerges a blueprint for doctrinal reform. In short, this Article suggests that the Court should begin by clearing away the distracting, indirect proxies for reliance that dominate the current jurisprudence. In their stead, the Court should construct a new framework that focuses directly, rigorously, and systematically on the fundamental reliance considerations themselves. Such an undertaking, it must be acknowledged, will present significant challenges. But embracing those challenges is necessary if we hope to move toward a doctrine of stare decisis that delivers on its longstanding promise to promote stability, coherence, and the rule of law.

Full post as published by Legal Theory Blog on May 24, 2010 (boomark / email).