Stare Decisis as Authority and Aspiration

36 Pages Posted: 28 May 2021

Date Written: May 27, 2021

Abstract

The doctrine of stare decisis remains a defining feature of American law despite challenges to its legitimacy and efficacy. Even so, there is space between the role that stare decisis currently plays and the potential that it offers. The gap is evident in the jurisprudence of the U.S. Supreme Court. Though the Justices continue to underscore the fundamental status of stare decisis, the Court’s opinions sometimes seem quick to depart from precedents whose reasoning has fallen out of favor.

Using Bivens v. Six Unknown Named Agents as a case study, this Article explains how the Court can invigorate the doctrine of stare decisis in pursuit of a stable and impersonal rule of law. Viewed against the backdrop of modern interpretive philosophy, Bivens might well be anachronistic. Yet by committing themselves to precedents of precisely that sort, the Justices can demonstrate that changes in judicial personnel—and attendant shifts in the prevailing winds of legal theory—do not always translate into changes in the law.

Keywords: precedent, stare decisis, supreme court, bivens

Suggested Citation

Kozel, Randy J., Stare Decisis as Authority and Aspiration (May 27, 2021). Notre Dame Law Review, Vol. 96, No. 5, 2021, Available at SSRN: https://ssrn.com/abstract=3854822

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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