Daniel B. Rice (Georgetown University Law Center) & John Boeglin have posted Confining Cases to Their Facts (105 Va. L. Rev. (2019 Forthcoming)) on SSRN. Here is the abstract:
Stare decisis is the mainstay of doctrinal stability. But through the little-known expedient of “confining a case to its facts,” courts can evade the pull of stare decisis by overruling everything a decision stands for except its precise result. This doctrinal workaround has enabled courts to sidestep the formal requirements that attend overruling and quietly undermine precedent without stirring public interest. But confining’s conveniences are offset by its considerable dangers: it cuts courts loose from the constraints of stare decisis; it requires judges to engage in unprincipled, fact-bound adjudication; it dilutes the integrity of the law by enshrining contradictory legal principles; and it squarely conflicts with modern retroactivity doctrine. Remarkably, the law of precedent has entirely failed to account for this unusual practice. Confining and overruling have been deployed interchangeably, with little regard for their distinctive attributes. In this first in-depth treatment of confining, we offer guidelines for its responsible use — ones designed to place the practice on sounder theoretical footing and to end its indiscriminate use across the federal court system.