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33 Seattle U. L. Rev. 151 (2009-2010)
Overruled by Implication

handle is hein.journals/sealr33 and id is 153 raw text is: OVERRULED BY IMPLICATION
Bradley Scott Shannont
The Supreme Court of the United States has repeatedly stated that it
reserves the exclusive right to overrule its own precedents.' This
proposition, as far as it goes, seems fairly unproblematic, as the concept
of vertical stare decisis is well established in American jurisprudence.2
Thus, though some have suggested that lower courts should have some
ability to disregard Supreme Court precedent,3 most would agree that
mere disagreement with a prior decision, a belief that a case was wrongly
decided, a sense that a case would be decided differently if decided to-
day, or even a thought that, for reasons independent of any decision, a
holding is likely to be overruled are insufficient reasons for disregarding
superior court precedent.4
t Associate Professor of Law, Florida Coastal School of Law. I thank my good friend Eric Hultman,
who was at least willing to read this thing. I also thank the editors of the Seattle University Law
Review for their fine work.
1. See, e.g., Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484
(1989). A court may be said to overrule a precedent when one of its holdings, or some portion
thereof, is irreconcilably inconsistent with an earlier holding, or some portion thereof. The effect of
such an overruling is that the later holding, rather than the earlier, becomes binding law for that court
and those obliged to follow it, at least until the more recent holding is itself overruled or otherwise
abrogated. See Michael Abramowicz & Maxwell Steams, Defining Dicta, 57 STAN. L. REV. 953,
1090 n.447 (2005) (Case B can be thought of as overruling Case A if a holding of Case B and a
holding of Case A are inconsistent.). For more on the nature and practice of overruling, see infra
Parts ILA, III.C.
2. See Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46
STAN. L. REV. 817, 818 (1994) ([L]ongstanding doctrine dictates that a court is always bound to
follow a precedent established by a court 'superior' to it.) Where the superior court is the Su-
preme Court and the precedent involves the making or interpretation of federal law, subordinate
courts include not only lower federal courts, but also state courts. See id. at 825.
3. See, e.g., Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5
AVE MARIA L. REV. 1 (2007).
4. See Hutto v. Davis, 454 U.S. 370, 375 (1982) ([U]nless we wish anarchy to prevail within
the federal judicial system, a precedent of this Court must be followed by the lower federal courts no
matter how misguided the judges of those courts may think it to be.); C. Steven Bradford, Follow-
ing Dead Precedent: The Supreme Court's Ill-Advised Rejection of Anticipatory Overruling, 59
FORDHAM L. REV. 39, 83 (1990) (A lower court clearly violates its duty of allegiance to the Su-

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