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76 Geo. L. J. 1361 (1987-1988)
Overruling Statutory Precedents

handle is hein.journals/glj76 and id is 1383 raw text is: Overruling Statutory Precedents WILLIAM N. ESKRIDGE, JR.* Stare decisis, the rule that judicial precedents should be followed, has been considered by American courts to be more a rule of thumb than an iron- fisted command. While stare decisis emphasizes the continuity of law as a means to preserve public respect for judicial decisionmaking and to protect the reliance interests of persons and institutions, these values must sometimes yield to growth and change. Thus, an American court does not consider itself inexorably bound by its own precedents, but, in the interest of uni- formity of treatment to litigants, and of stability and certainty in the law... will follow the rule of law which it has established in earlier cases unless clearly convinced that the rule was originally erroneous or is no longer sound because of changed conditions and that more good than harm would come by departing from precedent.' Last Term, the Supreme Court confronted these issues in several impor- tant cases of statutory interpretation.2 The most controversial of these was Johnson v. Transportation Agency, Santa Clara County.3 Paul Johnson brought suit against the Transportation Agency for promoting an allegedly less qualified female applicant to road dispatcher instead of him. Johnson argued that he was discriminated against on the basis of sex, in violation of * Associate Professor of Law, Georgetown University Law Center. I am grateful to Daniel Farber, Philip Frickey, Willard Hurst, Earl Maltz, Gary Peller, Richard Posner, John Rich, and Stephen Ross for comments on an earlier draft of this article. Craig Meredith and John Storella provided useful research assistance. 1. Moore & Oglebay, The Supreme Court, Stare Decisis and the Law of the Case, 21 TEx. L. REV. 514, 539-40 (1943). See generally B. CARDOZO, THE NATURE OF THE JUDICIAL PROCESS 150 (1960); Pound, What of Stare Decisis?, 10 FORDHAM L. REv. 1 (1941). 2. See Welch v. State Dep't of Highways & Public Transp., 107 S. Ct. 2941 (1987) (overruling Parden v. Terminal Ry., 377 U.S. 184 (1964), but refusing to overrule Hans v. Louisiana, 134 U.S. 1 (1890), Ex Parte New York, No. 1, 256 U.S. 490 (1921), and cases relying on them); Puerto Rico v. Branstad, 107 S. Ct. 2802 (1987) (overruling Kentucky v. Dennison, 65 U.S. (24 How.) 66 (1861)); United States v. Johnson, 107 S. Ct. 2063 (1987) (declining to overrule Feres v. United States, 340 U.S. 135 (1950), and applying it to bar suits by military personnel based on injuries received in the course of military duty but caused by the negligence of civilians); see also Crawford Fitting Co. v. J.T. Gibbons, Inc., 107 S. Ct. 2494,2498 (1987) (disapproving classic obiter in Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 235 (1964)); Shearson/American Express, Inc. v. McMahon, 107 S. Ct. 2333, 2340-41 (1987) (disapproving reasoning of Wilko v. Swan, 346 U.S. 427 (1953), and refusing to extend it, but not directly overruling precedent); NLRB v. International Bhd. of Elec. Workers, Local 340, 107 S. Ct. 2002, 2013 & n.15 (1987) (disavowing dicta in ABC v. Writers Guild, 437 U.S. 411 (1987)); North Carolina Dep't of Transp. v. Crest St. Community Council, Inc., 107 S. Ct. 336, 341 (1987) (rejecting dicta in New York Gaslight Club, Inc. v. Carey, 447 U.S. 54 (1980)). 3. 107 S. Ct. 1442 (1987). 1361

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