Precedent and Disagreement

25 Pages Posted: 5 Sep 2017 Last revised: 13 May 2018

Glen Staszewski

Michigan State University College of Law

Date Written: May 9, 2018

Abstract

This essay reviews Randy Kozel’s book, Settled Versus Right: A Theory of Precedent. It contends that far from presenting a fundamentally neutral approach that should reasonably be acceptable to everyone, Kozel’s second-best theory of precedent is deeply normative and inherently controversial, and most Justices would have compelling grounds for rejecting his proposed doctrinal reforms. The review proceeds to set forth the outlines of an alternative conception of precedent that is grounded in deliberative democratic theory. This theory accepts interpretive pluralism as a desirable feature of the American constitutional order. It also recognizes that the fundamental purposes of presumptive deference to precedent are to facilitate reasoned deliberation within the judiciary, and to shift responsibility for changing entrenched features of the law to more deliberative or broadly representative institutions of government. Promoting continuity and the impersonality of law are merely side-benefits of stare decisis. The true purposes of presumptive deference to precedent are served whenever the Court considers and responds in a reasoned fashion to prior decisions regardless of whether the Court follows or overrules its precedent.

Keywords: precedent, stare decisis, constitutional interpretation, interpretive pluralism, deliberative democracy

Suggested Citation

Staszewski, Glen, Precedent and Disagreement (May 9, 2018). 116 Michigan Law Review 1019 (2018). Available at SSRN: https://ssrn.com/abstract=3029611

Glen Staszewski (Contact Author)

Michigan State University College of Law ( email )

420 Law College Building
East Lansing, MI 48824-1300
United States
517-432-6888 (Phone)
517-432-6879 (Fax)

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