Coase-Sandor Working Paper Series in Law and Economics
Publication Date
2024
Abstract
There has been significant debate in recent years about the stare decisis effect of Supreme Court decisions, prompted in large part by the overturning of Roe v. Wade and, more recently, by the overturning of Chevron. Almost all of this debate has concerned whether the Court should adhere to its own decisions, a matter of “horizontal” stare decisis. But potentially even more significant is the “vertical” effect of Supreme Court precedent on the lower courts, which handle almost all of the federal judicial business. If the Supreme Court expressly overturns a precedent, the lower courts will of course stop following that precedent. But what happens when the Court simply suggests in some way that the precedent is in disfavor? This Article considers that question from both empirical and normative perspectives, drawing on case studies of three doctrines that lost favor on the Court: the Lemon test for Establishment Clause claims, Bivens actions, and Chevron deference. Based on this analysis, we develop what we term a “decisional authority model,” pursuant to which the lower courts should consider some disfavoring signals but not others when determining the weight to be given to a Supreme Court precedent. We provide a taxonomy of potential signals and offer guidance to lower courts on how to respond to these signals. We also highlight the tradeoffs between disfavoring and overturning precedent.
Number
1025
Recommended Citation
Bradley, Curtis A. and Grove, Tara Leigh, "Disfavored Supreme Court Precedent in the Lower Federal CourtsDisfavored Supreme Court Precedent in the Lower Federal Courts" (2024). Coase-Sandor Working Paper Series in Law and Economics. 1025.
https://chicagounbound.uchicago.edu/law_and_economics/1061
