NewYorkUniversity
LawReview
Current Issue

Volume 90, Number 4

October 2015

The Decision to Depart (or Not) from Constitutional Precedent

Lee Epstein, William M. Landes, Adam Liptak

An Empirical Study of the Roberts Court

Constitutional law casebooks, generations of constitutional lawyers, and the Justices themselves say that the Court is more likely to depart from precedent in constitutional cases than in other types. We test this assumption in cases decided by the Roberts Court and find, at odds with earlier studies, that the data provide inconclusive support for it. Other factors, especially criticism of precedent by lower courts and lawyers, are more consistent and stronger predictors of the Court’s decisions to depart from precedent. These findings have interesting implications for lawyering, teaching, and judging in the constitutional law context.