Randy Kozel (Notre Dame Law School) has posted Second-Best Stare Decisis on SSRN. Here is the abstract:
If Supreme Court Justices differ over the proper interpretation of the Constitution, can they nevertheless agree about the treatment of constitutional precedent?
The Supreme Court’s existing doctrine of stare decisis has much to recommend it. Yet the Court’s jurisprudence is confounded by the Justices’ varying interpretive philosophies. No doctrine of stare decisis can succeed unless it finds a way to mitigate the effects of methodological disagreement. For stare decisis to promote the stability and impersonality of law, it requires an analytical framework that is tailored for operation in a second-best world of interpretive pluralism.
This Article develops a new theory of second-best stare decisis. Second-best stare decisis emphasizes doctrinal factors whose content does not depend on adherence to any particular interpretive methodology. The second-best approach also incorporates structural solutions, such as supermajority voting requirements, to promote collaboration across methodological lines. Finally, second-best stare decisis pursues compromises that emphasize the common ground among divergent methodologies in their treatment of judicial precedent. The result is a reconceptualized doctrine of stare decisis that seeks to transcend interpretive disputes and underscore the Court’s status as a unified institution working across time — an institution that is something different, and something greater, than its individual members.
Posted at 6:51 AM