Judge Posner and Stare Decisis

Judge Posner of the Seventh Circuit Court of Appeals has a unique writing style. Here is an excerpt of a recent opinion where he addresses the issue of stare decisis; the excerpt gives those unfamiliar with his work a feel for how the man writes (and thinks):

“The plaintiffs’ lawyer asks us to overrule Harkins because,
he contends, it was decided incorrectly. But if the fact that a court considers one of its previous decisions to be incorrect is sufficient ground for overruling it, then stare decisis is out the window, because no doctrine of deference to precedent is needed to induce a court to follow the precedents that it agrees with; a court has no incentive to overrule them even if it is completely free to do so. The doctrine of stare decisis ‘imparts authority to a decision, depending on the court that rendered it, merely by virtue of the authority of the rendering court and independently of the quality of
its reasoning. The essence of stare decisis is that the mere
existence of certain decisions becomes a reason for adhering to their holdings in subsequent cases.’ Midlock v. Apple Vacations West, Inc., 406 F.3d 453, 457 (7th Cir. 2005) (citations omitted). It is not a conclusive reason; the Supreme Court has specified considerations that a court should weigh in deciding whether to follow or to overrule a previous decision. ‘[W]hen this Court reexamines a prior holding, its judgment is customarily informed by a series of prudential and pragmatic considerations designed to test
the consistency of overruling a prior decision with the ideal of the rule of law, and to gauge the respective costs of reaffirming and overruling a prior case. Thus, for example, we may ask whether the rule has proven to be intolerable simply in defying practical workability; whether the rule is subject to a kind of reliance that would lend a special hardship to the consequences of overruling and add inequity to the cost of repudiation; whether related principles
of law have so far developed as to have left the old rule no more than a remnant of abandoned doctrine; or whether facts have so changed, or come to be seen so differently, as to have robbed the old rule of significant application or justification.’ Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 854-55 (1992) (citations omitted); see also Payne v. Tennessee, 501 U.S. 808, 827-28 (1991); Moragne v. States Marine Lines, Inc., 398 U.S. 375, 403 (1970).”

Interesting. And certainly good advice. Don’t tell an appellate court that a prior decision is “wrong.” You need to do more, much more, to convince an appellate court to change the law.