Is stare decisis dead?

Stare decisis for thee but not for me?

Update (6/25): Check out this excellent analysis of stare decisis by my collegaue and friend Ilya Somin. Here is an excerpt:

” I have previously suggested that ‘Stare decisis will not stop the justices from overturning a precedent they think is badly wrong and causes significant harm’ — a point I believe applies to both liberal and conservative jurists. Nothing in yesterday’s opinions leads me to change that view. This point can be recast in terms of the Supreme Court’s doctrinal standards for reversing previous decisions: its ‘precedent on precedent.’ The doctrine requires the Court to consider such factors as the quality of the earlier precedent’s reasoning, the extent to which changing circumstances have undermined its utility, the ‘workability’ of the precedent, and whether it has generated significant reliance interests. But much of this just a fancier and more sophisticated way of saying that courts must consider 1) how bad was the precedent, and 2) how much harm it causes, which perhaps should be weighed against the potential harm of upsetting settled expectations.

prior probability

SCOTUS overruled another venerable precedent this week. (Will Roe v. Wade be the next to go?) The case is South Dakota v. Wayfair, Inc., a decision we hope is quickly overruled by Congress. Due to other commitments (Summer A grading), we will discuss the sordid details of the Wayfair case–and propose a bill to Congress to overrule this hideous decision–next week. In the meantime, check out Will Baude’s excellent summary, via Volokh, of this stare decisis divide.

Update (29 June 2018): I have now posted part 1 and part 2 of my analysis of the Wayfair case.

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About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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