DePaul Law Review, Vol. 39, No. 2 (Winter 1990), pp. 357-388


Part I of this Article asserts that the Supreme Court pays little attention to precedent in federal courts law. My examples in support of this claim are taken from important areas of federal courts doctrine, where two major upheavals have taken place in the past thirty years. First, the Warren Court rewrote the law to expand access to federal court. then under Chief Justice Burger, the Court undid many of the changes wrought by its predecessor. The discussion in Part I of prominent departures from precedent is not offered as decisive proof that stare decisis is less important in federal courts cases than elsewhere. It is instead an account of the grounds for my intuition that this is so. I do not know how to go about empirically proving the point, short of developing a means of precisely measuring the importance of precedent in various areas, and then persuading the world to accept my methodology. I am not up to that task. Part II examines the concept of precedent in general terms. Borrowing from the jurisprudential literature on stare decisis, I argue that precedent is best viewed as means and not an end in itself. Adherence to prior cases is a way to pursue a number of goals, including predictability in the law, efficiency in decisionmaking, and fairness to litigants. These worthy goals come at a price, for a court that chooses precedent as its rule of decision necessarily foregoes the opportunity to improve the content of the law by reexamining the arguments on the merits of the legal question at hand. Part III considers the implications of this cost-benefit approach to precedent for federal courts law. The values of predictability, efficiency, and fairness carry great weight in cases where the legal rules bear heavily on primary behavior and the substantive law of rights and obligations. But they are not particularly strong in the law of federal courts, where the issue is typically the distribution of decisionmaking power between federal and state courts and among courts and other governmental institutions A court bent on reforming the law will always find it comparatively easy to justify a departure from precedent in federal courts law. In addition, the costs of adhering to precedent here are substantial. Although federal courts doctrine rarely bears directly on the substantively law of rights and obligations, it does address important question of governmental structure. It is concerned with the institutional role of the federal courts in our system of government. Fidelity to precedent would impose a high cost on Supreme Court Justices, for it would oblige them to pass up the opportunity to contribute to the development of law on these vital matters. As a result of this combination of factors, the Supreme Court will find, more often than courts do in other areas of the law, that the costs of following precedent are especially high and the benefits especially low in the adjudication of federal courts issues.