Al loses a case at first instance and appeals to some very high court if not all the way to last resort. The ultimate decision is made based on some rationale that appeals to common sense or general social conditions like an observation of what is socially typical. Or alternatively perhaps it is literally a ruling based on a determination what a “reasonable person” in a given scenario might do. Anyway, this becomes the prevalent legal regime for a certain type of case for 50 years, during which time society and culture progress and develop.

60 years later Bob loses a case on the basis of this precedent from a superior court 50 years ago.

Is it generally possible to argue to the court in which Bob finds himself that the rationale for the prevailing regime, laid down 60 years ago, is now outdated and thus inapplicable?

3 Answers 3


An "outdated rationale" is one factor to be considered when overruling precedent.

Yes. Precedent relies on respect for the principle of stare decisis, the idea that courts should stand by what they have already decided, and thus enforce similar outcomes for similarly situated individuals.

In the , the U.S. Supreme Court has established a test for when to ignore stare decisis and overturn precedent:

  1. the quality of the precedent's reasoning
  2. the workability of the rule it established
  3. the precedent's consistency with other related decisions
  4. developments since the decision was handed down; and
  5. reliance on the decision

Janus v. AFSCME, 138 S. Ct. 2448, 2478-79 (2018).

Your question seems to most squarely implicate factor 4, i.e., when the Court decided United States v. Al, the state of the universe required Rule X, but the universe has now changed such that Rule Y makes more sense in United States v. Bob.

Establishing that fact alone may not be enough to justify overruling a precedent, but that fact will often also support the other factors, as well. Perhaps the quality of the precedent's reasoning is low because it failed to account for the possibility of the changes Bob is relying on. Perhaps those changes are so prevalant that they have rendered the precedent's rule unworkable. Perhaps the precedent is inconsistent with related decisions that have relied on those changes to establish their rules.

An outdated rationale was key to the decision to overrule Quill

Many precedents have been overruled based -- at least in part -- on that scenario. Probably the best recent example is South Dakota v. Wayfair, Inc., 138 S. Ct. 2080 (2018), which overruled Quill Corp. v. North Dakota, 504 U.S. 298 (1992) and Nat. Bellas Hess v. Dept. of Revenue, 386 U.S. 753, 87 S. Ct. 1389 (1967). In those cases, the Court held that states may not impose sales-tax collection obligations on a business based on its sales into the state, unless the business had a "physical presence," such as an office, warehouse, or sales agents, in the state.

Bellas Hess reached that decision based in large part on the administrative burdens businesses would encounter in trying to discern the sales tax rates applicable to every sale across the country. Doing so would require the seller to (1) know not only what state all their buyers live in, but also whether they were also subject to sales tax based on the county, city, school district, water district, etc., in which each one lived; and if so (2) determine whether their product was within the definition of a taxable good or service in each of those jurisdictions; and if so (3) calculate tax based on the current rates of each of those jurisdictions; and then (4) comply with each jurisdiction's reporting and recordkeeping requirements. In 1967, there was no practical way for remote sellers to carry on their business without incurring massive compliance costs.

But when the Court heard Wayfair 50 years later, the same was no longer true. Although other factors also counseled in favor of setting aside stare decisis, Wayfair focused most of its attention on the technological changes that demanded a new rule, noting that everything had changed since Quill was decided.

On one hand, the importance and impact of remote sales had grown wildly:

  • Internet access had grown from 2 percent of America to 89 percent.
  • Remote sales had grown from $180 billion annually to more than half a trillion dollars annually, with Amazon and other e-commerce platforms supplanting Wal-Mart stores and other brick-and-mortar sellers.
  • The loss of tax revenue from remote sales had grown from $3 billion to $33 billion.

But while the ease and impact of making remote sales had been increasing, the states had seriously ameliorated the burden of collecting taxes on those sales. Many states had spent the last 15 years on the Streamlined Sales and Use Tax Agreement, collaborating to bring uniformity to their sales tax definitions, administration, and collection. And technological developments from companies like Avalara -- subsidized by the states -- had greatly reduced the burden of calculating the tax due on purchases anywhere in the country.

Therefore, given "the present realities of the interstate marketplace," the Court concluded that it must overrule its holdings from Quill and Bellas Hess:

The real world implementation of Commerce Clause doctrines now makes it manifest that the physical presence rule as defined by Quill must give way to the far-reaching systemic and structural changes in the economy and many other societal dimensions caused by the Cyber Age. Though Quill was wrong on its own terms when it was decided in 1992, since then the Internet revolution has made its earlier error all the more egregious and harmful.

South Dakota v. Wayfair, Inc., 138 S. Ct. 2080, 2097 (2018).

Other cases

Of course, this was not the first or only case to find that the rationale for a precedent was outdated. Others include:

  • 4
    Minor quibble: "Remote sales had grown from $180 billion annually to more than half a trillion dollars annually," Half-a-trillion is 500 billion, so this could obscure the point that this is only (at minimum) a roughly tripling of sales. Using billion and trillion can hide that fact. Commented Jun 29, 2023 at 21:43

Vertical stare decisis

Trial courts are generally bound by existing precedent from higher in the appellate hierarchy. This is the principle of vertical stare decisis.


a trial judge can consider and decide arguments based on Charter provisions that were not raised in the earlier case; this constitutes a new legal issue. Similarly, the matter may be revisited if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate

Canada v. Bedford, 2013 SCC 72, para. 44.

Horizontal stare decisis

As for when an apex or appellate court can deviate from its own previous holdings, this has not been squarely addressed by a majority of the Supreme Court, but see the dissent in R. v. Kirkpatrick, 2022 SCC 33. It observes that it is proper for the Court to overturn its own precedent when:

  1. The previous decision failed to regard binding authority or a relevant statute;
  2. The decision has proven unworkable; or
  3. The decision's rationale has been eroded by significant societal or legal change.


In the U.S., for example, while the Supreme Court precedent is binding on all lower courts, it is not necessarily binding on SCOTUS itself. Perhaps famously, SCOTUS overruled its previous decision of Plessy v. Ferguson (1896) and the "separate but equal" doctrine in Brown v. Board of Ed, which abolished the decision.

In First Amendment Law, the Supreme Court thrice changed precedent with respect to what qualifies as unprotected speech and when the state may restrict speech and under what conditions.

Further, Constitutional Amendments or Amendments to Laws in question can overrule the Supreme Court as precedent is interpretation of statutory laws. If the law changes and the change is valid, then the decision may no longer hold as it is no longer applicable.

  • 1
    Yes but is it Possible to argue to the lower court that it shouldn’t be bound by the prior superior precedent due to obsolescence and irrelevance to the present era? Commented Jun 28, 2023 at 13:33
  • Only if the court is directly superior. SCOTUS is Superior to all circuit courts in the federal system, but circuits are not bound by decisions of other circuits. So a state in the 4th Circuit Court system is not bound by decisions in the 9th circuit and vice versa. That said, those decisions can still be cited as a circuit split often is a good reason for the Supreme Court to intervene.
    – hszmv
    Commented Jun 28, 2023 at 14:21
  • Yes so of course the SCOTUS can overrule itself. But can a lower court disregard a prevailing regime regardless of from how high up in the chain it hails if its rationale is no longer true? Commented Jun 28, 2023 at 15:01
  • Typically what happens in these cases is that the question on law is similar but different from the question that the case law is based on. In those cases, the lower courts are not ignoring the precedent, but saying the situation that the precedence covers is not the same situation they are making a ruling on. For example a new technology may have opened up questions that were ruled on before that tech was considered. Courts must have actual injury, so speculative rulings in the U.S. are not possible.
    – hszmv
    Commented Jun 28, 2023 at 15:14
  • @Seekinganswers if a court rules contrary to binding precedent, the losing party will appeal, giving the court that created the binding precedent to reaffirm or overrule the precedent. More usually, the lower court rules consistently with the binding precedent and the losing party's appeal includes arguments that the precedent should be overruled.
    – phoog
    Commented Jun 28, 2023 at 18:01

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