The Download of the Week is The Nature of a Precedent’s Error by Nina Varsava. Here is the abstract:
This paper considers whether and under what conditions a judge might take herself to be justified in overturning a precedent based on the nature of the precedent’s error, and regardless of the stare decisis factors, such as reliance interests, that typically structure and cabin the horizontal stare decisis analysis. I develop a theory of how judges approach this category of erroneous judicial decisions (following the US Supreme Court, I call them egregiously erroneous), which is meant to clarify and elucidate judicial practice. I propose that an egregiously erroneous precedent involves a moral error of substantial magnitude. And I suggest that, when confronted with a decision she takes to be egregiously erroneous, a judge might experience a kind of imaginative resistance that prevents her from setting aside her moral convictions and treating an authoritative directive as an exclusionary reason in the Razian sense. The upshot is that the judge will decide to overrule the precedent based on her own assessment of its moral merits and shouldn’t be blamed for doing so (unless the judge holds false moral beliefs that were irresponsibly acquired or maintained).
Highly recommended! Download it while it’s hot!
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