Cambridge Legal Theory Discussion Group (CLTDG): 'Reconstructing Precedent'

Speaker: Nina Varsava (University of Wisconsin-Madison)

Abstract: I try to explain and justify the doctrine of horizontal stare decisis, which is mysterious in that it requires a court to follow its own decisions and simultaneously permits or even requires the court to depart from those decisions. I argue that horizontal stare decisis is best described as a moral practice in the sense that moral considerations determine, in part, the legal effect of a past case. These considerations include the fairness of treating morally alike cases alike, and the fairness and autonomy values served by enabling and protecting reasonable expectations. By the legal effect of a decision, I mean whether it is legally binding and how strongly so, and also the content of the norm that the decision represents. On my account, morality determines how the social facts of judicial decisions contribute to the law. For example, the ways in which people have relied on a precedent might partly determine the parameters of that precedent’s legal holding because protecting reliance interests serves values related to autonomy and fairness. And just how strongly people have relied on a precedential norm might partly determine the legal force of that norm. My account would help resolve several longstanding debates about precedent, including how to construe the holding of a case. It would lend support, for example, to Chief Justice Roberts’s controversial conception of Roe/Casey as standing for the right to a reasonable opportunity to obtain an abortion without prohibiting all pre-viability abortion bans (a conception that he articulated in his Dobbs concurrence and that was rejected by both the majority and the dissent in that case).

You can find the links to Varsava’s paper and to the meeting below:

The Paper: https://bit.ly/cltdg-varsava-draft

The Zoom link: https://bit.ly/cltdg-michaelmas23-2

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