Things to Read This Week (2/2/2026)
Stare Decisis questions
The Origins of Statutory Stare Decisis, by Christian Burset. An amazing paper about the Tory-Patriot split on stare decisis: “By the 1790s, English law contained two rival approaches to statutory precedent—a classical paradigm, which effectively allowed a course of precedent to amend a statute; and a revisionist alternative, which held that precedent could clarify but not alter a statute’s meaning. Americans inherited that conflict, which endured well into the nineteenth century.” I will add that I saw this paper workshopped and it was one of the best workshops I have seen in a long time.
Sustaining Stare Decisis as a Post-Merits Determination, by Peter Povilonis. An interesting philosophical perspective on stare decisis, criticizing Kisor v. Wilkie for “invok[ing] stare decisis to uphold a previous line of cases but simultaneously chang[ing] the rule laid out in those cases. . . . by changing the law, the Kisor Court negates its only justification for upholding the case.”
Not an article, but an interesting cert petition in Anoka Hennepin v. Huizenga arguing that the doctrine of municipal taxpayer standing should be overruled.
