In contrast, reasoning from precedent-and maybe it is a mistake to call it "reasoning" at all-is following a previous decision just because of its status as a decision of a higher court or of the same court on an earlier occasion, not because the follower in the instant case has been persuaded by the reasoning of the precedent case. Some lower court judge in New Jersey, for example, might still believe after Henningsen that all nonfraudulent contractual provisions should be strictly enforced according to their terms and that the Henningsen court's concern for the consumer was misplaced. Even after reading Henningsen, he remains unpersuaded. Yet however much he continues to believe in the strict enforceability of written provisions, and even though he believes Henningsen to have been wrongly decided, he is still obliged, as a lower court judge in the same jurisdiction, to follow Henningsen despite being convinced of its error. So too for stare decisis. If in 1970, ten years after Henningsen, the majority of the New Jersey Supreme Court consisted of justices not on the court at the time of Henningsen, and if those new justices believed Henningsen to have been erroneously decided, the obligations of stare decisis would still have obliged them to decide the same issue in the same way. They would have been constrained to follow a decision they thought mistaken just because of its existence as a previous decision of the same court. The British legal theorist P. S. Atiyah puts it directly: "The concept of a system of precedent is that it constrains judges in some cases to follow decisions they do not agree with."

Unknown, Frederick Schauer - Thinkin…, loc. 69