Kiel Brennan-Marquez (University of Connecticut – School of Law) has posted Revitalizing Stare Decisis on SSRN. Here is the abstract:
Stare decisis is twisting in the wind. On paper, the doctrine enforces respect for precedent. But in practice, it resembles a shell game; when judges wish to overturn precedent, the only real constraint seems to be whether they have the votes. This sensibility has long reigned among scholars. Recently, however, it has also become prominent among sitting members of the Supreme Court. For the last few terms, the Justices have been engaged in open debate—echoing decades of academic commentary—about the doctrine’s future. Some argue that stare decisis should take root in “neutral principles” that run orthogonal to a case’s merits. Others, meanwhile, think stare decisis should index the magnitude of past error: the more egregiously wrong the precedent in question, the less force it ought to have.
These reform efforts, alas, are doomed. There is simply too much at stake; qualitative reformulations of doctrine will be little more than changes of banner, unable to rein in the enterprise of constitutional transformation. This leaves us two choices. The first is to abandon stare decisis. As Prof. Baude has recently argued, versions of the doctrine that fail to limit discretion are worse than useless; we would be better off dispensing with the pretense of constraint altogether. The second route is to revitalize stare decisis by hardwiring its premise—respect for precedent—into a non-circumventable rule. That is my goal here. Settled law should be modifiable, I argue, only if the combined vote across both courts—the court that crafted the holding at t1, and the one scrutinizing it at t2—totals a majority. In other words, the durability of past decisions should depend on the amount of support they were originally able to command. After tracing the conceptual foundations and mechanics of this rule, I close by exploring how it would apply to a handful of canonical cases, and then more generally to the last few decades of jurisprudence.
Very interesting and recommended.