This evening, Judge Andrew S. Oldham of the Fifth Circuit gave the Joseph Story Distinguished Lecture at the Heritage Foundation. I was pleased to be in attendance. The topic was provocative and will no doubt be controversial. Judge Oldham favors the elimination of horizontal stare decisis. As a result, an earlier three-judge panel on a court of appeals would not bind a later three-judge panel on that same court of appeals. Judge Oldham would eliminate what the Fifth Circuit calls the "Rule of Orderliness." Why is it called the "Rule of Orderliness"? In the absence of this rule, some would argue, there would be disorder, but this rule maintains order.

At first blush, this topic may seem crazy, even heretical. But Judge Oldham has provided a deep theoretical defense of his position. Given

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