The Cost of Judicial Error: Stare Decisis and the Role of Normative Theory

The Supreme Court of the United States has long embraced the doctrine of stare decisis as an appropriate consideration any time the Court considers overruling past precedent. However, because the Court's actual application of the doctrine has been both sporadic and seemingly inconsistent, some scholars (and Justices) have accused the Court of methodological hypocrisy and bad faith. Much of this criticism assumes that, if members of the Supreme Court find certain rule of law values dispositive in one case, they should find those same considerations dispositive in all cases. Failure to do so suggests either incompetence or insincerity.

This Article argues that, on the contrary, stare decisis ought not be applied in the same manner in all cases. In fact, occasionally stare decisis should not apply at all.