The Download of the Week is Old Rulings, New Reasons by Jack Boeglin. Here is the abstract:
When the Supreme Court does away with a longstanding legal principle, what should become of the hundreds, if not thousands, of precedents across the judicial system that rely upon it? Does some residual precedential value continue to attach to a decision even after its reasoning has been rejected? Or should it be overturned unless it can be upheld on a new, independently persuasive legal basis?
These are the questions courts must ask when deciding whether to “reharmonize” precedent. A court reharmonizes a past decision by supporting it on alternative grounds that better fit with changing legal or factual understandings. The Roberts Court has, in its own words, taken a “dim view” of reharmonizing. It should brighten its outlook. Reharmonizing promotes the values underlying stare decisis. It respects the norms of common law doctrinal development. It accounts for the reality of judicial fallibility. And it clarifies whether and why undermined precedent remains good law. But it can also distort legal doctrine by encouraging courts to accept a new rationale for a past decision that does not represent the “best” legal interpretation as a matter of first principles.
This Article offers a framework for when courts should (and should not) reharmonize. A precedent should be reharmonized when: (1) its original reasoning is no longer tenable; (2) a plausible alternative legal basis exists on which to preserve it; and (3) the benefits of reharmonizing outweigh the costs to doctrinal integrity. This framework clarifies the precedential doctrines employed by the federal courts, including the “special justification” and “prior panel precedent” rules. What’s more, it could help clean up the doctrinal messes created by the demise of Chevron, the curtailing of substantive due process, and the hollowing out of Bivens.
Highly recommended. Download it while it’s hot!