Urging A Change In The Law: When To Set Aside Precedent?

The common law doctrine of stare decisis provides that once a court has decided a legal issue, subsequent cases presenting similar facts should be decided in conformity with the earlier decision.1 But the doctrine is not an inflexible rule. Judicial decisions simply determine the rights of the parties to an action that is before the court at a particular time in history. They are not, and are not meant to be, immutable laws governing the conduct of mankind and designed for the ages, such as the Ten Commandments. Rather, opinions "must be read in the setting of the particular cases and as the product of preoccupation with their special facts."2 The "precedential value of a judicial opinion is limited to the question presented by the facts of the case before the court."3

Stare decisis is "a principle of policy" and not a mechanical formula of adherence to a prior decision, however questionable.4 While the doctrine is not to be lightly cast aside, a court should not hesitate to overrule its precedents "when persuaded by the 'lessons of experience and the force of better reasoning.'"5 Adherence to a precedent "should depend upon its continuing practicality and the demands of justice."6

As Chief Judge Charles Breitel explained, "Invariably, the concern is with the exercise of restraint in overturning established well-developed doctrine and, on the other hand, the justifiable rejection of archaic and obsolete doctrine which has lost its touch with reality."7 The doctrine "was intended, not to effect a 'petrifying rigidity,' but to assure the justice that flows from certainty and stability. If, instead, adherence to precedent offers not justice but unfairness, not certainty but doubt and confusion, it loses its right to survive, and no principle constrains us to follow it."8

The Court of Appeals has observed that it acts "in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice."9 And, as Judge Benjamin Cardozo put it, "If judges have woefully misinterpreted the mores of their day, or if the mores of their day are no longer those of ours, they ought not to tie, in helpless submission, the hands of their successors."10

In his lecture on "Adherence to Precedent," Cardozo observed that "the labor of judges would be increased almost to the breaking point if every past decision could be reopened in every case, and one could not lay one's own course of bricks on the secure foundation of the courses laid by others who had gone before him."11 However, this does not mean courts should slavishly follow an earlier decision "where it can be shown that the law has been misapplied, or where the former determination is evidently contrary to reason"12 or "out of step with the times and the reasonable expectations of members of society."13 In such cases, "where justice demands it," it is not only the right but "the duty of courts to re-examine the question."14

Not all precedents are accorded equal deference; some are more susceptible to being overruled than others. Thus, where the interpretation of the Constitution is at issue, courts are more prone to correct an error...