Brittany Morrow v. Barry Balaski

I join Chief Judge McKee’s well-reasoned majority opinion in its entirety. I write separately only to explain the limited circumstances under which I believe we may overrule one of our prior en banc decisions.

“Stare decisis should be more than a fine-sounding phrase.” Oregon ex rel. State Land Bd. v. Corvallis Sand & Gravel Co., 429 U.S. 363, 394, 97 S.Ct. 582, 50 L.Ed.2d 550 (1977) (Marshall, J„ dissenting). Yet it is nothing more than that if it does not require us, in the ordinary course, to adhere to a precedent with which we disagree. And even sitting en banc, we do not conduct a plenary…