This is a seminar organised by the Edinburgh Legal Theory Research Group. The speaker Nina Varsava, from the University of Wisconsin, will be presenting her paper on The Nature of Precedent’s Error.
Our seminars consist of a 30-minute presentation given by the author, followed by a 60 to 90-minute Q&A. This IS NOT a pre-read event, BUT the paper will be circulated beforehand through our mailing list. To subscribe, please send an email to edinburgh.legal.theory@gmail.com.
Author bioNina Varsava is Associate Professor at the University of Wisconsin Law School. Her work focuses on judicial reasoning, legal interpretation, and the role of precedent in U.S. constitutional adjudication.
AbstractIn the majority opinion in the United States Supreme Court case of Dobbs v. Jackson Women’s Health Organization, the justices suggest that they are justified in overruling Roe v. Wade just because of the “egregious” nature of that precedent’s error. Dobbs is not the only decision in which judges have made claims to that effect. In this paper, I develop a theory of egregiously erroneous precedents, with two primary components. A precedential error is egregious if (1) the decision violates a pure moral principle or law, and (2) the moral erroneousness of the precedent strikes the judge as clear and obvious. If these conditions are met, then the factors that guide the stare decisis analysis in typical cases, such as reliance interests, will have no role to play.
My account is meant to explain how judges approach this category of erroneous precedents in practice and should thus have descriptive value in clarifying and elucidating what judges are up to. The account also has a normative aspect, as it explains judicial practice in a way that would justify or at least excuse it.
