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Stare Decisis In Historical Perspective: From The Founding Era To The Rehnquist Court, Thomas R. Lee

Vanderbilt Law Review

As numerous statistical studies have noted, the modern Supreme Court has overruled itself at a rate that far exceeds that which prevailed during the Court's early years. But is the accelerated rate a result of a decay in the Court's doctrine of stare decisis? Several critics have presumed so without engaging in any historical analysis. In this Article, Professor Lee offers a detailed historical examination of the evolution of the Supreme Court's overruling rhetoric. The author traces the evolution of important strands of the Rehnquist Court's doctrine of stare decisis from founding-era treatises to early applications in the Marshall and …