A Modified Approach to Overruling for the 'Conservative Majority'

56 Pages Posted: 4 Mar 2023

See all articles by Santiago Legarre

Santiago Legarre

Universidad Catolica Argentina; Notre Dame Law School

Andrew Chenevert

Holland & Knight LLP - Houston Office

Date Written: February 22, 2023


In Dobbs, the Supreme Court demonstrated its willingness to overturn precedent. Given this willingness, the question becomes what other precedents may be reconsidered next. Although most Justices, past and present, agree on the importance of certain factors in reconsidering precedent, there is not a unified framework for how to apply these factors. In Dobbs, the majority's opinion considered several factors generally in coming to its decision. Despite joining the majority, Justice Kavanaugh reiterated his support for a framework he first set forth in Ramos. We argue that Justice Kavanaugh's goal of having a set framework is important as it can lead to more predictability and a more objective analysis of when to overturn precedent. Despite our agreement, we propose modifications to the framework to make it more conceptually sound and predictable.

Keywords: Stare Decisis, Overruling, Supreme Court

JEL Classification: K10, K30, K40

Suggested Citation

Legarre, Santiago and Chenevert, Andrew, A Modified Approach to Overruling for the 'Conservative Majority' (February 22, 2023). Tulane Law Review, forthcoming , Available at SSRN: https://ssrn.com/abstract=4368480 or http://dx.doi.org/10.2139/ssrn.4368480

Santiago Legarre (Contact Author)

Universidad Catolica Argentina ( email )


Notre Dame Law School ( email )

P.O. Box 780
Notre Dame, IN 46556-0780
United States

Andrew Chenevert

Holland & Knight LLP - Houston Office

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics