Randy Kozel’s book, Settled Versus Right: A Theory of Precedent, is a laudable effort to make the law more stable, more cohesive, more impersonal — an effort to show that the law can endure even as Justices come and go. The core of his contribution is a proposed doctrine of stare decisis that disentangles deference to precedent from the interpretive methodologies that led to the precedent in the first place, and that so often determine the amount of deference a precedent gets. As a purely doctrinal project, Settled Versus Right naturally assumes that if we fix the doctrine, we’ll fix the decision-making. I’m not convinced that is true, not when non-doctrinal factors like policy preferences and extra-legal context influence the Justices’ decision-making too. The best a theory of precedent can do, I submit, is to minimize the most corrosive effects of these non-doctrinal influences — the discarding of precedent based on nothing more than a change in the majority Justices’ policy preferences — while accommodating the inevitable evolution of the law that comes with the passage of time. In this essay, I critique Kozel’s theory of precedent by this measure, concluding that it would get us to a place that might best be described as “mostly settled, but right for now.” Although I differ with Kozel’s view of how his theory would play out in practice, the equilibrium that his theory could produce would be a significant improvement on the current state of stare decisis, and offers an opportunity to reset the delicate balance between change and stability that the doctrine aims to provide. In light of the complex web of influences in which the Justices operate, that’s about the best a theory of precedent can do.
Lain, Corinna, Mostly Settled, But Right for Now, 33 Constitutional Commentary 355 (2018).