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Randy Kozel: Stare Decisis as Authority and Aspiration
Michael Ramsey

Randy J. Kozel (Notre Dame Law School) has posted Stare Decisis as Authority and Aspiration (Notre Dame Law Review, Vol. 96, No. 5, 2021) (36 pages) on SSRN.  Here is the abstract:

The doctrine of stare decisis remains a defining feature of American law despite challenges to its legitimacy and efficacy. Even so, there is space between the role that stare decisis currently plays and the potential that it offers. The gap is evident in the jurisprudence of the U.S. Supreme Court. Though the Justices continue to underscore the fundamental status of stare decisis, the Court’s opinions sometimes seem quick to depart from precedents whose reasoning has fallen out of favor.

Using Bivens v. Six Unknown Named Agents as a case study, this Article explains how the Court can invigorate the doctrine of stare decisis in pursuit of a stable and impersonal rule of law. Viewed against the backdrop of modern interpretive philosophy, Bivens might well be anachronistic. Yet by committing themselves to precedents of precisely that sort, the Justices can demonstrate that changes in judicial personnel—and attendant shifts in the prevailing winds of legal theory—do not always translate into changes in the law.

Even so, there is always going to be the question of how broadly or narrowly to read a precedent.  Bivens is illustrative. Should it be read narrowly (as a majority of the Court appears to think) because its reasoning was in tension with originalism, formalism and separation of powers, or should it be read fairly generously (as I tend to think) because despite its questionable reasoning it's a reasonable substitute for the Constitution's original legal background?  Or, even if one thinks it's not a reasonable substitute for the Constitution's original legal background, should it nonetheless be read broadly as part of a commitment to stare decisis?  I'm doubtful that simply the idea of "committing [oneself] to precedents" can answer these questions.