Randy J. Kozel (Notre Dame Law School) has posted Retheorizing Precedent (Duke Law Journal, Vol. 70, No. 5, 2021) on SSRN. Here is the abstract:
Does the doctrine of stare decisis support judicial attempts to retheorize dubious precedents by putting them on firmer footing? If it does, can retheorization provide a means for Chevron to endure as a staple of administrative law notwithstanding serious challenges to its established rationale?
Highly recommended.
