Academic

Shapiro & Mosvick on Overruling Precedent & Citizens United

By Lawrence Solum

Ilya Shapiro and Nicholas M. Mosvick (Cato Institute and Cato Institute) have posted Stare Decisis after Citizens United: When Should Courts Overturn Precedent (Nexus Journal of Law & Public Policy, Vol. 16, 2011) on SSRN. Here is the abstract:

Stare decisis is an important doctrine with deep roots in the common law. It "promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process." Payne v. Tennessee, 501 U.S. 808, 827 (1991). Indeed, our interest in the law?s stability and predictability, and the reliance interests produced by judicial decisions, sometimes dictate that incorrect legal rulings be maintained - because the social disruptions from correction outweigh the benefits of reaching better decisions. Still, stare decisis is neither an "inexorable command," Lawrence v. Texas, 539 U.S. 558, 577 (2003), nor a "mechanical formula of adherence to the latest decision," Helvering v. Hallock, 309 U.S. 106, 119 (1940). Instead it is a prudential policy, one in which courts have to decide, based on factors such as the correctness, antiquity, and workability of the legal regime a precedent created, whether to overturn their earlier rulings. As Chief Justice Roberts put it in his Citizens United concurrence, "abrogating the errant precedent, rather than reaffirming or extending it, might better preserve the law?s coherence and curtail the precedent?s disruptive effects." 130 S. Ct. 876, 921 (2010) (Roberts, C.J., concurring). And so the Court in Citizens United found that both Austin v. Michigan Chamber of Commerce, 494 U.S. 652 (1990), and the part of McConnell v. FEC, 540 U.S. 93 (2003), that relied on it were not worthy of preservation. They created an arbitrary and increasingly irrational campaign finance system that was an aberration of restrictions in a sea of protections for political speech. Moreover, then-Solicitor General Elena Kagan abandoned Austin?s speech-equality rationale during oral argument, undercutting any possible reliance interests. Only by overturning precedent could the Court contribute to the stable and orderly development of the law. This article will explain the role stare decisis played in Citizens United and build on the Chief Justice?s concurrence to describe the current state of the doctrine.

Full post as published by Legal Theory Blog on February 17, 2011 (boomark / email).