Precedent, Super-Precedent


The idea of super-precedent was first posited by (then) Prof. Posner & Prof. Landis 30 years ago, but as a throw-away, and was not picked up in the jargon. In 2000 Judge Michael Luttig of the 4th Circuit used it –as “super stare decisis” –and this time it did gain a following. “Super-precedent” –and even “super-duper precedent” --had an airing at both the Alito and Roberts hearings before the Senate Judiciary Committee and soon generated a couple of academic articles. No doubt there will be more. This is my contribution to the debate.

How, if at all, are we to make sense of the notion of super-precedent? Is it useful? I examine the concept as it might fit into the theories of stare decisis that have been in vogue at various times, in the process elaborating on the doctrine and the theories accounting for it. I also look at its use in the Senate hearings of Supreme Court nominees Roberts and Alito for indicia of the neologism’s popular usage and possible future.



Date of this Version

August 2006