explaining that stare decisis applies even when the Circuit sits en banc, but that overturning precedent is nevertheless justified when the law has changed
How later courts described this case
- explaining that stare decisis applies even when the Circuit sits en banc, but that overturning precedent is nevertheless justified when the law has changed
Written by the judges who cited it.
The opinion
FRIENDLY, Circuit Judge
(concurring) :
If the issue here were now arising in this court for the first time, I might well be persuaded to the position *414 taken by Judge Freedman in Northern Metal Co. v. United States, 350 F.2d 833 (3 Cir. 1965) and by my brother Anderson in dissent, rather than to that which we adopted in States Marine Corp. of Del. v. United States, 283 F.2d 776 (2 Cir. 1960). But the issue is a close one on any view, there is much to be said for States Marine, and it derives considerable support from the language of Soriano v. United States, 352 U.S. 270, 274-275 , 77 S.Ct. 269 , 1 L.Ed.2d 306 (1957). That we are sitting in banc does not relieve us of the judicial obligation to pay proper heed to precedent; the question still is “not what we would hold if we now took a fresh look but whether we should take that fresh look,” Mississippi River Fuel Corp. v. United States, 314 F.2d 953, 958 , 161 Ct.Cl. 237 (1963) (concurring opinion of Davis, J.). Judge Davis’ illuminating opinion identifies several factors that may justify this; when none of these exists, “respect for an existing precedent is counselled by all those many facets of stability-plus-economy which are embodied in the principle of stare decisis.” The only thing in the picture now that was not before the States Marine panel six years ago is the Third Circuit’s opinion in Northern Metal; valuable as that is, it can hardly be rated, to use Judge Davis’ phrase, as “an intervening development in the law, or in critical comment, which unlocks new corridors.” What it does do is to provide a ready handle for opening the door to correction, if we are wrong, by the only tribunal that can settle the issue once and for all. Supreme Court Rule 19.