Kurt T. Lash (University of Illinois College of Law) has posted The Cost of Judicial Error: Stare Decisis and the Role of Normative Theory (Notre Dame Law Review, Forthcoming) on SSRN. Here is the abstract:
Before a justice on the Supreme Court applies stare decisis in a constitutional case, they must first determine whether the application of the doctrine is appropriate. This requires the application of normative theory. Depending on the justice’s normative theory, some judicial errors impose such high costs that application of the doctrine of stare decisis is inappropriate and the error should simply be rectified. Even in those constitutional cases where theory allows the maintenance of judicial error as a legitimate option, considerations of normative theory affect how the justice ought to balance the costs of upholding against the costs of overruling erroneous precedent. In cases where theory suggests that the costs of judicial error are relatively low, avoiding substantial harm to rule of law values might reasonably suggest that the Court should “stand by” the flawed decision. Where theory suggests the costs of error are high, however, only the most severe disruption to the rule of law can justify maintaining a flawed precedent. This balancing of normative theory and stare decisis occurs in all judicial applications of stare decisis, though not always in a transparent manner.
Focusing on some of the more high profile discussions of stare decisis by the Rehnquist and Roberts Courts, this essay explores how judicial application of stare decisis generally includes a normative evaluation of the costs of judicial error. The counter-balancing impact of normative theory is especially evident in the Roberts Court decision to overrule Austin v. Michigan Chamber of Commerce in Citizens United v. Federal Election Commission. Building upon the implicit normative theory of Citizens United, the essay sketches a more complete theory of stare decisis that takes into consideration both the rule of law considerations of stare decisis and the normative considerations that flow from the theory of popular sovereignty.
For my take on stare decisis, see The Supreme Court in Bondage.