Precedent in a Polarized Era
12 Pages Posted: 10 Dec 2018 Last revised: 11 Feb 2019
Date Written: December 15, 2018
Randy J. Kozel’s new book, Settled Versus Right: A Theory of Precedent, makes an important contribution to the age-old debate over stare decisis. Advocating an institutional rather than personal view of judicial authority, Kozel urges judges and justices operating in the present-day environment of "interpretive pluralism" to focus on non-merits factors such as workability, factual accuracy, and reliance in deciding whether to overrule most types of constitutional precedent. Increasingly polarized views of constitutional law make Kozel's book exceptionally timely, but the same developments may well limit its influence, as evidenced by two cases overruling precedent in the Supreme Court's most recent term.
Keywords: precedent, stare decisis, constitutional law
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