Review of Kozel (Chs. 3-5): The Problem with Precedent

Chapters 3, 4, and 5 of “Settled Versus Right” mount a powerful critique of precedent, or to be more precise, these chapters show why precedent is such a feeble constraint in practice, despite the U.S. Supreme Court’s oft-repeated lip service to the Anglo-American doctrine of stare decisis. To the point: why is stare decisis just so much judicial “cheap talk” (as an economist might say) at the end of the day, especially in close constitutional cases? Because there is no uniform or widely-shared metric for resolving the Brandeis problem, i.e. for evaluating the positive and negative effects of retaining (or overturning) a precedent. As a result, the scope and strength of  stare decisis in any given case ultimately depends on each justice’s preferred theory of interpretation!

Although Kozel carefully restates the finer points of the major theories of constitutional interpretation–including popular sovereignty originalism, structural originalism, and (our favorite) common law constitutionalism–we won’t bother going over (yet again) the tiresome details of each interpretive theory here, since there is no way of objectively deciding which of these theories is the best or correct one. Instead, it simply suffices to restate the irrefutable logic of Kozel’s powerful argument regarding the feebleness of stare decisis: there is no uniform metric for evaluating the positive and negative effects of retaining (or overturning) a precedent. That is, in figuring out the scope of a precedent or in deciding whether to affirm or overturn a precedent, a judge will have to compare the costs and benefits of these various courses of action (narrow versus broad scope; stability versus accuracy), but the weights a judge uses to evaluate these multifarious costs and benefits (and in deciding what counts as a “cost” or a “benefit” in the first place) are not uniform. Rather, these weights are determined by the judge’s preferred theory of interpretation! (But don’t take our word for it; read Kozel’s excellent book for yourself, especially Chapter 5.)

For our part, we would make the following clarification regarding the feeble nature of stare decisis as a constraint in constitutional cases: the trouble with precedent is not “interpretative pluralism,” i.e. the fact that different judges espouse different theories of constitutional interpretation. No, the underlying problem with precedent is that the doctrine of stare decisis is itself logically circular, or in the words of Kozel (p. 60): “the first rule of precedent is that prior decisions warrant respect,” but at the same time “a close second is that no decision is untouchable.” In other words, when a judge is confronted with the Brandeis problem (whether to leave the law “as is” or change the law) or whether to interpret a precedent broadly or narrowly, he is always free to choose any course of action (leave alone or change; narrow or broad), for as Kozel himself concedes (p. 69): “There is no universal [or transcendent] explanation for why it is important for the law to be right or why it is problematic for the law to be wrong. A theory of precedent must never lose sight of this fact.” Can Kozel rescue the doctrine of stare decisis? He will certainly try (in Chapters 6-8), so stay tuned. We shall turn to those chapters next …

Image result for circular logic
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2 Responses to Review of Kozel (Chs. 3-5): The Problem with Precedent

  1. Pingback: Review of Kozel (Chs. 6-8): second-best stare decisis | prior probability

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

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