Confining Cases to Their Facts

58 Pages Posted: 5 Sep 2018 Last revised: 10 Jan 2019

See all articles by Daniel B. Rice

Daniel B. Rice

Georgetown University Law Center

John Boeglin

Independent

Date Written: August 29, 2018

Abstract

Stare decisis is the mainstay of doctrinal stability. But through the little-known expedient of “confining a case to its facts,” courts can evade the pull of stare decisis by overruling everything a decision stands for except its precise result. This doctrinal workaround has enabled courts to sidestep the formal requirements that attend overruling and quietly undermine precedent without stirring public interest. But confining’s conveniences are offset by its considerable dangers: it cuts courts loose from the constraints of stare decisis; it requires judges to engage in unprincipled, fact-bound adjudication; it dilutes the integrity of the law by enshrining contradictory legal principles; and it conflicts with modern retroactivity doctrine. Remarkably, the law of precedent has failed to account for this unusual practice. Confining and overruling have been deployed interchangeably, with little regard for their distinctive attributes. In this first in-depth treatment of confining, we offer guidelines for its responsible use—ones designed to place the practice on sounder theoretical footing and to end its indiscriminate use across the federal and state court systems.

Keywords: stare decisis, precedent, Roberts Court, legal change, retroactivity

JEL Classification: K10, K40

Suggested Citation

Rice, Daniel B. and Boeglin, John, Confining Cases to Their Facts (August 29, 2018). 105 Va. L. Rev. (2019 Forthcoming). Available at SSRN: https://ssrn.com/abstract=3240320

Daniel B. Rice (Contact Author)

Georgetown University Law Center ( email )

600 New Jersey Avenue, NW
Washington, DC 20001
United States

John Boeglin

Independent ( email )

No Address Available

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