Academic journal article Michigan Law Review

Precedent and Disagreement

Academic journal article Michigan Law Review

Precedent and Disagreement

Article excerpt


SETTLED VERSUS RIGHT: A THEORY OF PRECEDENT. By Randy J. Kozel. New York: Cambridge University Press. 2017. Pp. x, 176. Hardback, $99.99; paperback, $34.99.


Supreme Court justices have fundamentally competing perspectives regarding the best approach to constitutional interpretation. The Court has therefore never adopted one authoritative methodology of constitutional interpretation. Rather, the Court uses different methodologies to decide different cases, justices frequently vacillate in their preferred interpretive methods, and many decisions fail to reflect any foundational approach. Within the bounds of legitimate judicial craft, constitutional interpretation-and legal interpretation more generally-is a methodological free-for-all.

Notwithstanding the Court's interpretive pluralism, justices have consistently embraced the principle of stare decisis, and the presumption that courts will follow applicable precedent is one of the defining features of the American legal system. This practice is widely understood to promote efficiency, stability, and the legitimacy of the judicial system. Yet it is also widely accepted that "[s]tare decisis is not an inexorable command"1 and that the obligation to follow precedent is a prudential principle that can be overcome by other considerations, including an overwhelming desire to get things right.2 Aside from these areas of common ground, however, the Court has never produced a consistent theory of precedent, and there is no dominant understanding of stare decisis or the best way to resolve its seemingly contradictory premises.3

Randy Kozel's4 insightful and provocative new book, Settled Versus Right: A Theory of Precedent, argues that the Court's interpretive pluralism has precluded a consistent and uniform doctrine of stare decisis. Justices weigh the benefits of stability against the harms associated with standing by an erroneous or flawed decision when evaluating whether to adhere to past decisions. Because justices with competing interpretive perspectives use different metrics to identify and measure the relevant harms (and to determine whether a prior decision was erroneous or flawed in the first instance), a pluralistic Court cannot treat precedent in a consistent or uniform fashion if each justice is left to her own interpretive devices.

Kozel believes that the absence of a consistent and uniform doctrine is particularly problematic because stare decisis is designed to promote the stability and impersonality of law. Yet stare decisis cannot perform these functions if every justice follows a different approach to precedent. Kozel therefore advocates a "second-best" approach that would only allow for the consideration of traditionally relevant factors that can be applied independently of each justice's fundamental methodological and normative commitments in assessing whether to adhere to a mistaken decision.5 "The pivotal difference between the Court's existing account of stare decisis and this second-best approach is the latter's introduction of doctrinal revisions designed to alleviate the problems posed by interpretive disagreement" (p. 128). This approach would generally preclude justices from considering the substantive harm that would result from continuing to follow a mistaken decision, the persuasiveness of the challenged precedent's reasoning, or the impact of following precedent on the overall coherence of constitutional law.6 While Kozel recognizes that his proposal would require justices to adhere to decisions they regard as mistaken, he contends that his approach reflects a theoretically neutral compromise that could reasonably be acceptable to justices with fundamentally competing interpretive perspectives.7

This Review contends that, far from presenting a neutral theory of stare decisis that should reasonably be acceptable to everyone, Kozel's second-best theory of precedent is deeply normative and inherently controversial. …

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