Review of Kozel (Ch. 2): Pros and Cons of Stare Decisis

Chapter 2 of “Settled Versus Right” weighs the pros and cons of stare decisis. Let’s jump in with the cons. Kozel sums up the main argument against stare decisis as follows (p. 50): “The job of judges is to interpret the law correctly.” On this view, the problem with the doctrine of stare decisis is that it thwarts this fundamental judicial function (accurate legal interpretation) by allowing stability (fidelity to past decisions) to trump accuracy and the reduction of legal error (getting the law right). This accuracy/stability tradeoff is the crux of the Brandeis Problem; in addition, this tradeoff explains why courts always have the inherent power to overrule their own precedents: even in a world in which courts are committed to precedent, judges should be able to undo past mistakes.

But is the pursuit of “accuracy” a chimera in close cases? (Most cases that go all the way up to the Supreme Court are, by definition, close cases: there are good legal arguments on both sides of the issue!) That is, is there really such a thing as a “right answer” in a close case? If not, then stare decisis makes good sense, but even if there were, there are still many reasons why stability might be more important than accuracy. In particular, Kozel claims (p. 36): “There are numerous reasons why it might be wise to defer to precedent. Among them are promoting [1] decisional efficiency, [2] protecting settled expectations, and [3] finding common ground among judges who are inclined to see the world differently.” Alas, none of these reasons are particularly persuasive. To see why, let’s consider each one in turn. For starters, in a legal universe containing a large body of potentially applicable precedents, the level of “decisional efficiency” promoted by stare decisis is marginal at best. Lawyers will still argue over which precedents are relevant and over the scope of those precedents. (Kozel himself concedes on page 40 that “determining whether two cases are alike can be complex and controversial.”)

What about reliance or “protecting settled expectations”? This conservative argument in favor of stare decisis begs the question of which expectations are worth protecting! This argument is also circular, at least to the extent that everyone already knows ahead of time that a court has the power to overrule its own precedents. Since there is a positive probability that any given precedent might be overruled, the non-binding nature of horizontal precedent is a risk of playing the law game. (To his credit, Kozel recognizes this risk on page 48.) Last and least, Kozel’s “common ground” argument is the weakest of the lot. By way of example, despite the U.S. Supreme Court’s lip service regarding precedent, the doctrine of stare decisis is unable to transcend the jurisprudential differences of the individual justices. Why not? Because as Kozel himself will concede in the next two chapters of his book, each justice usually ends up evaluating the strength and scope of the court’s own precedents through their own jurisprudential and interpretive lenses. We shall thus turn to Chapters 3 and 4 next …

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About F. E. Guerra-Pujol

When I’m not blogging, I am a business law professor at the University of Central Florida.
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1 Response to Review of Kozel (Ch. 2): Pros and Cons of Stare Decisis

  1. Pingback: Extended Review of Kozel (2017) | prior probability

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