How to Realize the Value of Stare Decisis: Options for following Precedent

Abstract

When courts deliberate on the implications of a precedent case in the adjudication of a new dispute, they generally frame the issue as if there are three paths through--(1) follow the precedent, (2) overrule, or (3) distinguish--without acknowledging that option number one contains its own garden of forking paths. My chief aim in this paper is to delineate and evaluate several options for following precedent. I show that we can respect the doctrine of precedent or stare decisis without committing to any one particular method. I argue further that we have good reason to refrain from endorsing any single method for following precedent, and I propose instead a variable approach--one that is sensitive to the contextual factors that make one method preferable to another. My analysis reveals the methodological challenges that courts must face if they wish to make good on the promise of stare decisis when they go about their business of following precedent. I conclude with the suggestion that we should be open to considering a no stare decisis regime; at least in some types of case, adherence to precedent comes with considerable costs and only tenuous benefits.