Special Justifications

33 Constitutional Commentary 471 (2018)

21 Pages Posted: 9 Oct 2018

Date Written: October 7, 2018

Abstract

The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices have described as fundamental.

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

Suggested Citation

Kozel, Randy J., Special Justifications (October 7, 2018). 33 Constitutional Commentary 471 (2018). Available at SSRN: https://ssrn.com/abstract=3262148

Randy J. Kozel (Contact Author)

Notre Dame Law School ( email )

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

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