Charlie Capps

The Supreme Court's new Term is in full swing, raising the familiar problem of precedent: When and why should today's Supreme Court overrule decisions of yesterday's Supreme Court? My latest article, just published in the @PennLRev, examines this problem from a new lens. It argues that the Court's shift a century ago from mandatory to discretionary jurisdiction destabilized several procedural protections that existed against the abuse of precedent. With those procedural protections gone, the Justices have been forced to rely instead on the unsatisfying balancing test they use today. While returning to full mandatory jurisdiction is not practical, I offer targeted reforms that can restore some of the procedural protections that used to guide courts’ treatment of precedent. Link in the comments.