Stare Decisis and the Filibuster

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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2 Responses

  1. Orin Kerr says:

    Interesting argument. Question, though: is the rationale for strong stare decisis in statutory interpretation cases that Congress can fix incorrect interpretations “easily”, or just that it can? If the latter, then it’s not really different if the Senate effectively has a supermajority rule. Also, would you have the stare decisis rule change depending on the era in which that law was passed, or the ease in which similar statutes have been amended? For example, it’s much easier to get a law passed expanding a criminal law than narrowing it, or making it more punitive rather than less. If you begin to take these issues into account, then you run into a lot of headaches trying to classify the ease at which Congress is likely to correct interpretations.

  2. Gerard Magliocca says:

    Two thoughts. First, stare decisis is relaxed for constitutional precedents because getting an Article Five amendment to fix an error is hard. It’s not impossible though. Thus, the issue is whether current filibuster practice increases legislative inertia to the point that stare decisis should go from “super-strong” to “something less than that.”

    Second, I think that we’d be better off saying that stare decisis (and when to deviate from that principle) is a complex judgment that involves many factors. Treating statutory precedents as categorically different is too blunt.