Impeaching Precedent

58 Pages Posted: 20 Nov 2012 Last revised: 22 Feb 2014

See all articles by Charles L. Barzun

Charles L. Barzun

University of Virginia School of Law

Date Written: December 2012


This article is about the nature and scope of legal argument. It considers the question of whether a court, when determining the precedential weight of one of its prior decisions, should consider historical evidence indicating that the decision was decided on the basis of improper motivations or as the result of political pressure. In a common-law system in which courts pervasively rely on precedents as a source of law, that question is of obvious practical and theoretical importance. Yet courts and scholars have hardly even raised the question, let alone provided a satisfactory answer to it. Instead, they have assumed that such explanations are “historical,” not “legal” arguments – the kind of thing appropriate for law reviews, but not for courts of law.

This article directly challenges that assumption. Drawing on a few rare examples when Justices of the Supreme Court, or lawyers arguing before them, have sought to undermine court precedents by showing them to have been based on “extralegal” considerations, I argue that such efforts to historicize or – to use the term I prefer – impeach past decisions is a legitimate and potentially useful means of evaluating a decision’s precedential weight. Although various policy justifications may support excluding such arguments from judicial debate, I consider several such objections and explain why none is particularly persuasive. If the argument presented is sound, then not only should courts be more receptive to impeaching arguments, but – at least in the realm of constitutional law – both courts and scholars should perhaps broaden their understanding of how constitutional history bears on constitutional theory.

Keywords: Precedent, Stare Decisis, Eleventh Amendment, Sovereign Immunity, Impeachment, Impeaching, Hans, Souter, Legal History, Legal Philosophy, Jurisprudence, Constitutional Law, Constitutional Interpretation

Suggested Citation

Barzun, Charles L., Impeaching Precedent (December 2012). University of Chicago Law Review, Vol. 80, No. 4, 2013, Virginia Public Law and Legal Theory Research Paper No. 2012-69, Available at SSRN:

Charles L. Barzun (Contact Author)

University of Virginia School of Law ( email )

580 Massie Road
Charlottesville, VA 22903
United States
434-924-6454 (Phone)

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics