I’ve recently posted a new draft paper, “Narrowing Supreme Court Precedent From Below.” Here’s the abstract:
Lower courts supposedly follow Supreme Court precedent — but they often don’t. Instead of adhering to the most persuasive interpretations of the Court’s opinions, lower courts often adopt narrower readings. For example, recent court-of-appeals decisions have narrowly interpreted the Court’s rulings on police searches, gun control, and campaign finance. This practice — which I call “narrowing from below” — challenges the authority of higher courts and can generate legal disuniformity. But it is also beneficial. Narrowing from below allows lower courts to update obsolete precedents, mitigate the harmful consequences of the Court’s errors, and enhance the transparency of their decision-making process. This Article contends that narrowing from below is generally legitimate when lower courts adopt reasonable readings of higher-court precedent, even though those readings are not the most persuasive ones available. This conclusion holds true — with some significant modifications — under multiple scholarly models of vertical stare decisis, including models that view higher-court rulings as legally authoritative, comparatively proficient, or usefully predictive. Understanding narrowing from below as a legitimate activity also points toward a new “signals” model of vertical stare decisis. Under this model, lower courts follow the Court’s relatively informal cues to resolve ambiguity in conventional precedent, including by narrowing from below.
Any thoughts most welcome!
Re’s Judicata 
I think lower courts should follow precedent and invite the higher court to revisit and narrow the precedent if it leads to unintended consequences.
I think that’s a reasonable view, and it’s particularly compelling when higher-court precedent is clear. But consider the costs associated with taking that approach when Supreme Court precedent is ambiguous. Sometimes it takes the Court years to clarify, tweak, or overrule its decisions. In the meantime, numerous cases might become final under a misguided rule of law. Moreover, the Court itself often depends on narrowing from below. If lower courts uniformly apply the best reading of ambiguous precedent, then the Court won’t have the benefit of seeing how different approaches work out in practice. And in the absence of a circuit split, the Court might take a longer time before choosing to revisit the area.
Those are good points. Perhaps lower courts should be cautious to “narrow.” Circuit splits should be infrequent and fact-bound, when the SCOTUS has already weighed in on the question.
Narrowing from below could also be a euphemism for a refusal by federal district and appellate to follow unambiguous precedent and clear statutory law [mostly] in unpublished opinions. Since the Supreme Court no longer corrects legal errors by courts of inferior instance, the more blatant the error, the less likely it will be subject to review. How can a defendant conform his conduct to the law, if the law can be changed at will after the alleged offense, which may not have been an offense in the first place?
The U.S. needs to institute a Cour de Cassation, a court of the highest instance for the purpose of correcting legal errors only, with all possible expedition.
Just to make sure that the current propensity of “narrowing from below” does not continue unchecked!