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
Date Written: June 6, 2018
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: Suggested Citation