Precedent and Disagreement

This essay reviews Randy Kozel’s new book, Settled Versus Right: A Theory of Precedent. It contends that far from presenting a fundamentally neutral approach that should reasonably be acceptable to everyone, Kozel’s second-best theory of precedent is deeply normative and inherently controversial, and most Justices would have compelling grounds for rejecting his proposed doctrinal reforms. The review proceeds to set forth the outlines of an alternative conception of precedent that is grounded in deliberative democratic theory. This theory accepts interpretive pluralism as a desirable feature of the American constitutional order. It also recognizes that the fundamental purposes of presumptive deference to precedent are to facilitate reasoned deliberation within the judiciary, and to shift responsibility for changing entrenched features of the law to more deliberative or broadly representative institutions of government. Promoting continuity and the impersonality of law are merely side-benefits of stare decisis. The true purposes of presumptive deference to precedent are served whenever the Court considers and responds in a reasoned fashion to prior decisions regardless of whether the Court follows or overrules its precedent