66 Pages Posted: 25 May 2006
In this Article, I argue that the preclusive effect of precedent raises due-process concerns, and, on occasion, slides into unconstitutionality. The Due Process Clause requires that a court give a person notice and an opportunity for a hearing before depriving her of life, liberty or property. Because of this requirement, courts have held in the context of issue preclusion that as a general rule, judicial determinations can bind only parties. The preclusion literature asserts that this parties only requirement does not apply to stare decisis because stare decisis, in contrast to issue preclusion, is a flexible doctrine. Yet stare decisis often functions inflexibly in the federal courts, particularly in the courts of appeals. I claim that in its rigid application - when it effectively forecloses a litigant from meaningfully urging error - correction - stare decisis unconstitutionally deprives a litigant of the right to a hearing on the merits of her claims. To avoid the due-process problem, I suggest that courts render stare decisis more flexible; specifically, I propose that courts remove rules - like, for example, the rule that one appellate panel cannot overrule another - that create nearly insurmountable barriers to error - correction.
Keywords: stare decisis, precedent, preclusion, due process, estoppel
Suggested Citation: Suggested Citation
Barrett, Amy Coney, Stare Decisis and Due Process. University of Colorado Law Review, Vol. 74, p. 1011, 2003. Available at SSRN: https://ssrn.com/abstract=904362