The Problem with Precedent

Vienna Journal on International Constitutional Law, Vol. 12, no. 4 (Forthcoming)

8 Pages Posted: 24 Jun 2018 Last revised: 13 Jul 2019

See all articles by F. E. Guerra-Pujol

F. E. Guerra-Pujol

University of Central Florida; Pontifical Catholic University of Puerto Rico

Date Written: June 6, 2018

Abstract

We review "Settled Versus Right: A Theory of Precedent" by Randy J. Kozel. In summary, Kozel’s book is worth reading because our Anglo-American legal system is built on the foundation of the doctrine of stare decisis, and his book provides an in-depth yet readable exploration of how precedent is supposed to work. Specifically, Kozel explains why precedent is such a feeble constraint in constitutional cases, and he proposes a novel "second-best theory of stare decisis," given judicial disagreement over proper constitutional interpretation. We identify several problems with this second-best theory of precedent, and we also present an alternative theory of Bayesian stare decisis.

Keywords: precedent, stare decisis, circular reasoning, Bayesian judging

JEL Classification: K49

Suggested Citation

Guerra-Pujol, F. E., The Problem with Precedent (June 6, 2018). Vienna Journal on International Constitutional Law, Vol. 12, no. 4 (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3192092 or http://dx.doi.org/10.2139/ssrn.3192092

F. E. Guerra-Pujol (Contact Author)

University of Central Florida ( email )

Orlando, FL 32816
United States

HOME PAGE: http://www.priorprobability.com

Pontifical Catholic University of Puerto Rico ( email )

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