Settled Versus Right: A Theory of Precedent

In this timely book, Randy J. Kozel develops a theory of precedent designed to enhance the stability and impersonality of constitutional law. Kozel contends that the prevailing approach to precedent in American law is undermined by principled disagreements among judges over the proper means and ends of constitutional interpretation. The structure and composition of the doctrine all but guarantee that conclusions about the durability of precedent will track individual views about whether decisions are right or wrong, and whether mistakes are harmful or benign. This is a serious challenge, but it also reveals a path toward maintaining legal continuity even as judges come and go. Kozel's account of precedent should be read by anyone interested in the nature of the judicial role and the trajectory of constitutional law.

Table of Contents:
Introduction; 1. Framing the study of the precedent; 2. The stakes of deference; 3. Strength of constraint; 4. Scope of applicability; 5. Precedent and pluralism; 6. Precedential strength in doctrinal perspective; 7. Precedential strength in structural perspective; 8. Compromise, common ground, and precedential scope; 9. Implication and transitions; Conclusion.

About the Author :
Randy J. Kozel is a Professor of Law at Notre Dame Law School, where he also serves as Director of the Notre Dame Program on Constitutional Structure. Professor Kozel received his J.D., magna cum laude, from Harvard Law School. He served as a law clerk for Justice Anthony M. Kennedy at the US Supreme Court and for Judge Alex Kozinski at the US Court of Appeals for the Ninth Circuit. He also practiced as a litigator with a large law firm and as an in-house attorney at a multinational corporation.

Review :
'Precedent is one of law's eternal problems. One might think there is nothing else to say. One would be wrong, as Randy J. Kozel proves with this clear, cogent, and interesting new framing of the problems and a plausible, intelligent approach to a solution.' Adrian Vermeule, Ralph S. Tyler Professor of Constitutional Law, Harvard Law School 'Randy J. Kozel argues that judges should subordinate their individual views and embrace a common project of legal development. In Settled Versus Right, he puts precedent back at the center of constitutional theory.' Jack M. Balkin, Knight Professor of Constitutional Law and the First Amendment, Yale Law School 'Kozel's defense of the practice of precedent is comprehensive, persuasive, imaginative, and unremittingly fair-minded in its treatment of opposing positions. Although the book focuses on stare decisis in the Supreme Court of the United States, its analysis will be illuminating for everyone interested in understanding the nature of common law reasoning, both in the United States and elsewhere.' Frederick Schauer, David and Mary Harrison Distinguished Professor of Law, University of Virginia 'The book thoroughly describes a controversy that has long occupied legal scholars.' P. Lermack, CHOICE