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.