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07/24/2012

Randy J. Kozel: Constitutional Method and the Path of Precedent
Michael Ramsey

Randy J. Kozel (Notre Dame Law School) has posted Constitutional Method and the Path of Precedent (Notre Dame Legal Studies Paper No. 12-66) on SSRN. Here is the abstract:

Flawed constitutional precedents give rise to a jurisprudential dilemma. On the one hand, there is the value of allowing the law to remain settled. On the other hand, there is the value of getting the law right. The tension is well-chronicled. But while constitutional settlement has received extensive scholarly and judicial attention, the appraisal of constitutional rightness remains remarkably undeveloped.

This Article seeks to enrich the prevailing conception of stare decisis by bridging the divide between constitutional precedent and constitutional methodology. The Article demonstrates that although certain consequences of deviating from precedent can be analyzed in isolation, the ultimate choice between overruling and retaining a flawed opinion requires the integration of a broader interpretive philosophy. Only then can a court determine whether a precedent is so problematic as to justify its overruling despite the countervailing costs of legal change. Whether one’s preferred interpretive approach is originalism, living constitutionalism, or otherwise, the value of getting the law right is derivative of methodological commitments and the normative premises that inform them.

Recognizing this interdependence carries significant implications for the evolution of contemporary constitutional theory by situating the treatment of precedent within the framework of interpretive method. It also reconceptualizes the role of precedent in constitutional adjudication by highlighting the fundamental dissonance that pervades the relationship between stare decisis and pluralistic approaches to interpretation.