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Stare Decisis in the Second-Best World

56 Pages Posted: 20 Sep 2014 Last revised: 11 Oct 2015

Randy J. Kozel

Notre Dame Law School

Date Written: December 1, 2014

Abstract

If judges disagree about the proper interpretation of the law, can they find common ground in the treatment of precedent?

The doctrine of stare decisis weighs the value of legal continuity against the value of legal accuracy. But that analysis is complicated by pervasive disputes over the implications of legal error. Likewise, the scope of a precedent’s impact in future cases depends on underlying assumptions about the ends and means of legal interpretation. When those assumptions vary among judges, so too will applications of stare decisis.

For stare decisis to promote the continuity and impersonality of law, it requires an analytical framework designed not for an idealized world of interpretive consensus, but rather for a second-best world of interpretive pluralism.

Second-best stare decisis emphasizes doctrinal factors whose content does not depend on adherence to any particular interpretive methodology. The second-best approach also contemplates structural solutions, such as supermajority voting requirements, for promoting collaboration across methodological lines. Finally, second-best stare decisis pursues compromises that emphasize the common ground among competing schools of interpretation. The result is a reconceptualized doctrine of stare decisis that seeks to transcend interpretive disputes and underscore a court’s status as a unified institution working across time — an institution that is something different, and something greater, than its individual members.

Keywords: precedent, stare decisis, supreme court, constitutional law, judging

Suggested Citation

Kozel, Randy J., Stare Decisis in the Second-Best World (December 1, 2014). 103 California Law Review 1139 (2015); Notre Dame Legal Studies Paper No. 1436. Available at SSRN: https://ssrn.com/abstract=2498125 or http://dx.doi.org/10.2139/ssrn.2498125

Randy Kozel (Contact Author)

Notre Dame Law School ( email )

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

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