33 Constitutional Commentary 471 (2018)
21 Pages Posted: 9 Oct 2018
Date Written: October 7, 2018
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
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