Precedent and Reliance

Randy J. Kozel

Notre Dame Law School

July 31, 2013

Emory Law Journal, Vol. 62, 2013
Notre Dame Legal Studies Paper No. 1339

Among the most prevalent justifications for deference to judicial precedent is the protection of reliance interests. The theory is that when judicial pronouncements have engendered significant reliance, there should be a meaningful presumption against adjudicative change. Yet there remains a fundamental question as to why reliance on precedent warrants judicial protection in the first place. American courts have made clear that deference to precedent is a flexible policy rather than an absolute rule. The defeasibility of precedent raises the possibility that stakeholders who fail to mediate their reliance on precedent forfeit any claim to judicial protection through the doctrine of stare decisis.

This Article explores the dynamics and implications of precedential reliance. It contends that the case for protecting reliance on precedent is uncertain. There are several reasons why reliance might potentially be worth protecting, but all are subject to serious limitations or challenges. To bolster the doctrine of stare decisis while the status of precedential reliance continues to be worked out, the Article suggests a conceptual move away from backward-looking reliance and toward the forward-looking interest in managing the disruptive impacts of adjudicative change for society at large.

Number of Pages in PDF File: 50

Keywords: precedent, stare decisis, judicial decisionmaking, reliance, constitutional law, federal courts, Supreme Court

JEL Classification: K19, K30, K41, K49

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Date posted: August 1, 2013  

Suggested Citation

Kozel, Randy J., Precedent and Reliance (July 31, 2013). Emory Law Journal, Vol. 62, 2013; Notre Dame Legal Studies Paper No. 1339. Available at SSRN: https://ssrn.com/abstract=2304276

Contact Information

Randy J. Kozel (Contact Author)
Notre Dame Law School ( email )
P.O. Box 780
Notre Dame, IN 46556-0780
United States

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