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. The problem with the US Supreme Court's approach to precedent is not that the Justices are behaving in an unprincipled manner. The problem is that the modern doctrine of precedent is undermined by principled disagreements among Justices acting in good faith. 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 role of the Supreme Court and the trajectory of constitutional law.