Confining Cases to Their Facts

65 Pages Posted: 5 Sep 2018 Last revised: 26 Jun 2019

See all articles by Daniel B. Rice

Daniel B. Rice

University of Arkansas - School of Law

John Boeglin


Date Written: August 29, 2018


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. 865 (2019), Available at SSRN:

Daniel B. Rice (Contact Author)

University of Arkansas - School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

John Boeglin

Independent ( email )

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