Vlad Perju (Boston College - Law School) has posted Proportionality and Stare Decisis: Proposal for a New Structure (Forthcoming, Proportionality: New Frontiers, New Challenges (Vicki C. Jackson & Mark Tushnet, eds., Cambridge University Press, 2017)) on SSRN. Here is the abstract:
This paper argues that a change in the formal structure of proportionality analysis can increase the chance of proportionality’s successful transplant into American constitutional law. The change takes the form of an additional and new last step to the existing multi-prong inquiry, which would require judges to assess the outcome of the legal analysis at the previous stages against the disruption that outcome would cause to settled constitutional doctrine. The greater the departure from constitutional precedent, the stronger must be the reasons that justify it. By analogy to Robert Alexy’s “weight” analysis at the balancing stage, I label this new step the “disruption” analysis. Disruption analysis formalizes the requirement that “special justification – over and above the belief that ‘the precedent was wrongly decided’ be given whenever courts contemplate overruling precedent as a result of applying proportionality analysis.
Incorporating disruption analysis into the structure of proportionality has a number of advantages, other than enhancing proportionality’s transplantability appeal into American constitutional law. First, it shows that the structure of the proportionality test is not cast in stone; experimentation with the proportionality test are possible. Second, disruption analysis brings structure to the largely haphazard protection of constitutional precedent through the stare decisis doctrine. Third, as one step of proportionality’s multi-prong inquiry, disruption analysis is integral, rather than exogenous, to constitutional method and as such can mitigate the tension between “correctness” and “stability” that underpins the jurisprudential foundations of stare decisis. I illustrate my proposal with examples from the First Amendment.