Hillel Y. Levin (University of Georgia Law School) has posted A Reliance Approach to Precedent on SSRN. Here is the abstract:
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Why and when should courts presumptively defer to their own past precedents? The doctrine of precedent lies at the core of American jurisprudence and legal practice, but the source of its normative force remains unclear and, consequently, its application is confused, contested, and inconsistent. In this Article, I argue that precedent matters primarily because and to the extent that it has generated reliance interests on the part of the public. The Article explores the moral and jurisprudential underpinnings of the reliance approach to precedent and considers its far-reaching theoretical and practical implications. This approach, which has both descriptive and normative components, suggests that we must simultaneously limit and expand our traditional notions of what qualifies as precedent. More broadly, the reliance approach to precedent complicates and upsets what I call the gravitational account of law.
Highly recommended.