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62 Emory L.J. 1459 (2012-2013)
Precedent and Reliance

handle is hein.journals/emlj62 and id is 1489 raw text is: PRECEDENT AND RELIANCE

Randy J Kozel*
Among the most prevalent justifications for deference to judicial precedent
is the protection of reliance interests. The theory is that when judicial
pronouncements have engendered significant reliance, there should be a
meaningful presumption against adjudicative change. Yet there remains a
fundamental question as to why reliance on precedent warrants judicial
protection in the first place. American courts have made clear that deference
to precedent is a flexible policy rather than an absolute rule. The defeasibility
of precedent raises the possibility that stakeholders who fail to mediate their
reliance on precedent forfeit any claim to judicial protection through the
doctrine ofstare decisis.
This Article explores the dynamics and implications of precedential
reliance. It contends that the case for protecting reliance on precedent is
uncertain. There are several reasons why reliance might potentially be worth
protecting, but all are subject to serious limitations or challenges. To bolster
the doctrine of stare decisis while the status ofprecedential reliance continues
to be worked out, the Article suggests a conceptual move away from backward-
looking reliance and toward the forward-looking interest in managing the
disruptive impacts of adjudicative change for society at large.

* Associate Professor of Law, Notre Dame Law School. For helpful comments and conversations,
thanks to Amy Barrett, Joseph Bauer, Anthony Bellia, Barry Cushman, Daniel Farber, Richard Garnett, Bruce
Huber, Daniel Kelly, Michael Stokes Paulsen, and Jeffrey Pojanowski. Arthur Gregg provided excellent
research assistance.

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