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Abrogating Precedent: Challenging Statutory and Constitutional Interpretations That No Longer Seem Valid

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Thursday, September 22, 2022

Recorded event now available

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This CLE course will review best strategies for changing how lawyers should argue their cases after recent U.S. Supreme Court and U.S. Circuit Court decisions applying or modifying the doctrine of stare decisis. The panel will discuss new ways of analyzing, applying, and refining precedent, how U.S. Circuit Courts have applied their own and SCOTUS precedent, and how well trial courts follow precedent. The program will also examine what stare decisis is not and controversy and confusion concerning whether recent case law departs from or refines the principle.


How the Supreme Court decides if or when to abrogate its precedent can help litigants and appellate lawyers devise case strategies to identify and adequately preserve for appeal possible challenges to statutory and constitutional interpretations that no longer seem valid or appropriate.

Stare decisis is the legal doctrine that obligates courts to follow cases with similar scenarios and facts when deciding the current one. A true "case in point" is rare, so courts usually have some leeway in applying precedent. Whether a subsequent decision departs from prior precedent can be a nuanced question.

More frequently than ever, judges and attorneys are debating whether, as Louis Brandeis wrote, it is more important for the law to be settled than be settled right or whether precedent must be overruled promptly if it is shown to be "demonstrably erroneous" as in Brown v. Board of Education. Some see recent developments as a natural refinement of a problematic concept, while others suggest that stare decisis is in peril.

Listen as this exceptional panel discusses the past, current, and possible future of the stare decisis doctrine plus practical applications for litigators and appellate lawyers.



  1. History of stare decisis
  2. Critical cases where SCOTUS reversed itself and why
  3. Current approaches to stare decisis
  4. Strategies for possible challenges to both statutory and constitutional interpretations


The panel will review these and other pivotal questions:

  • What are the different and emerging views regarding when the Supreme Court should reverse course?
  • Can cases where the Court reverses prior opinion be categorized meaningfully?
  • Are reports of the death of stare decisis greatly exaggerated or cause for concern?


Cooney, Mark
Mark Cooney

Western Michigan University Cooley Law School

Prof. Cooney has taught Research & Writing and Advocacy for 16 years. Before teaching, he spent 10 years in private...  |  Read More

Shatz, Benjamin
Benjamin G. Shatz

Partner & Certified Appellate Specialist
Manatt Phelps & Phillips

Mr. Shatz Co-Chairs Manatt's Appellate Practice Group. He has briefed hundreds of civil appeals, writs, and...  |  Read More

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