FOLLOWING DEAD PRECEDENT: THE SUPREME COURT\u27S ILL-ADVISED REJECTION OF ANTICIPATORY OVERRULING

Stare decisis is an integral, accepted principle of American and common-law jurisprudence. The idea that courts should follow past decisions, whether of the same or a higher court, was accepted before this nation was born and continues to be generally accepted today. Criticism of stare decisis is equally ancient, however. A countervailing tradition allows a court to overrule precedent to correct its errors and develop the law. The life of the law has not been logic, Holmes wrote; it has been experience. Stare decisis has never been an inexorable command in the American system; courts have always been willing to overrule under the proper circumstances. The United States Supreme Court in particular has never held an absolute view of the validity of its own prior decisions. This willingness to overrule has created a problem for inferior courts, for even stronger than the tradition that a court should follow its own prior decisions is the tradition that a court should follow the prior decisions of a superior court in the same appellate system.5 The Supreme Court\u27s willingness to change doctrine creates situations in which a lower court cannot be completely loyal to the Supreme Court: a Supreme Court precedent directly applies to the case at hand, but later Supreme Court cases cast doubt on that precedent, either rejecting its analysis or applying a different test to an analogous issue. If the lower court is convinced that the Supreme Court would no longer follow the doubtful precedent, must the lower court nevertheless pay heed to stare decisis and apply that precedent? Or should it be faithful to the later decisions and rule as it believes the Supreme Court, given the opportunity, now would