Abrogating Precedent: Challenging Statutory and Constitutional Interpretations That No Longer Seem Valid

This CLE course will review best strategies for changing how lawyers should argue their cases after recent U.S. Supreme Court and U.S. Circuit Court decisions applying or modifying the doctrine of stare decisis. The panel will discuss new ways of analyzing, applying, and refining precedent, how U.S. Circuit Courts have applied their own and SCOTUS precedent, and how well trial courts follow precedent. The program will also examine what stare decisis is not and controversy and confusion concerning whether recent case law departs from or refines the principle.

How the Supreme Court decides if or when to abrogate its precedent can help litigants and appellate lawyers devise case strategies to identify and adequately preserve for appeal possible challenges to statutory and constitutional interpretations that no longer seem valid or appropriate.

Stare decisis is the legal doctrine that obligates courts to follow cases with similar scenarios and facts when deciding the current one. A true "case in point" is rare, so courts usually have some leeway in applying precedent. Whether a subsequent decision departs from prior precedent can be a nuanced question.

More frequently than ever, judges and attorneys are debating whether, as Louis Brandeis wrote, it is more important for the law to be settled than be settled right or whether precedent must be overruled promptly if it is shown to be "demonstrably erroneous" as in Brown v. Board of Education. Some see recent developments as a natural refinement of a problematic concept, while others suggest that stare decisis is in peril.

Listen as this exceptional panel discusses the past, current, and possible future of the stare decisis doctrine plus practical applications for litigators and appellate lawyers.