Document Type


Publication Date

Fall 2012


Does stare decisis constrain the expansion of constitutional doctrine? Does existing precedent preclude the Supreme Court from expanding a criminal defendant’s right to exculpatory evidence? While commentators frequently clash on when stare decisis should prevent the Court from overruling its own precedents, the question of when fidelity to precedent should inhibit doctrinal expansion is surprisingly under-theorized. This Article begins to fill this gap through an in-depth case study of stare decisis and the expansion of criminal due process doctrine.

This Article analyzes the longstanding constitutional dialectic between procedural and substantive schools of criminal due process. Focus is on Brady v. Maryland – the Court’s landmark 1963 decision that requires prosecutors to disclose favorable evidence to criminal defendants. Last Term, Justice Scalia argued in his Connick v. Thompson concurrence that Brady’s scope does not extend to prosecutorial disclosure of untested evidence that could prove innocence. Though coherent, Scalia’s argument depends on a particularly formal approach to stare decisis and a procedural view of due process. His argument against expanding Brady can be contested by what I term a “justificatory” approach to stare decisis and a competing substantive view of due process. This recent conflict between formal and justificatory stare decisis approaches and competing due process schools reflects a deeper metadoctrinal pattern.

Based on a close reading of over a century of case law, this Article demonstrates how successful justificatory stare decisis arguments have facilitated expansion of criminal due process while formal stare decisis arguments have constrained doctrinal growth. Building on prior work, I illustrate the Brady dialectic and its relationship to stare decisis through graphical “opinion maps” that chart rival lines of majority, concurring, and dissenting opinions. Mapping this key due process territory offers insight on the deeper conflict between substance and procedure in due process jurisprudence as well as a generalizable method for studying the impact of stare decisis on constitutional adjudication.



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