Let’s (Not) Make This Work! Why Stare Decisis Workability Should Be a Sword but Not a Shield

21 Pages Posted: 30 Apr 2018

See all articles by Audrey Lynn

Audrey Lynn

Regent University School of Law

Date Written: April 12, 2018


A factor of the United States Supreme Court’s stare decisis test, workability differentiates precedential rules that have proven easy for lower courts to apply in a consistent and fair manner from those that have not. This note addresses the question of whether workability is a legitimate reason for retaining a given interpretation of a statute. The Note begins by providing an illustration of what this Note will sometimes refer to as the “preservative use” of workability. The Note then lays out the history of workability as a consideration of stare decisis and describes how the factor has changed in recent decades. In so doing, its focus is on workability in the context of statutory interpretation. In order to explain the background and development of the factor, however, it is necessary to discuss specific cases in which the Supreme Court has applied workability in the context of constitutional interpretation. The two contexts must be differentiated for purposes of this Note because the thesis of this Note—i.e., that preserving an incorrect interpretation of a statute because of its relative workability violates separation of powers—has no parallel when a court interprets a constitution because in that case there is no inherent infringement on legislative power. This Note then explains why the change toward using workability to preserve erroneous precedent is not required logically, contravenes the basic purposes of stare decisis, and is constitutionally invalid as a violation of separation of powers. Finally, this Note proposes a new way to articulate the stare decisis test that does not discard workability as a consideration but precludes the preservative use criticized by this Note.

Keywords: stare decisis, workability, unworkability, precedent, separation of powers, fallacy, preserve, discard, retain

Suggested Citation

Lynn, Audrey, Let’s (Not) Make This Work! Why Stare Decisis Workability Should Be a Sword but Not a Shield (April 12, 2018). Available at SSRN: https://ssrn.com/abstract=3161718 or http://dx.doi.org/10.2139/ssrn.3161718

Audrey Lynn (Contact Author)

Regent University School of Law ( email )

1000 Regent University Drive
Virginia Beach, VA 23464
United States
757-352-4463 (Phone)

HOME PAGE: http://https://www.regent.edu/school-of-law/faculty/jd-audrey-j-lynn/

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