Randy J. Kozel,
Stare Decisis in the Second-Best World,
103 Cal. L. Rev. 1139
Available at: http://scholarship.law.berkeley.edu/californialawreview/vol103/iss5/2
If judges disagree about the proper interpretation of the law, can they find common ground in the treatment of precedent?
The doctrine of stare decisis weighs the value of legal continuity against the value of legal accuracy. But that analysis is complicated by pervasive disputes over the implications of legal error. Likewise, the scope of a precedent’s impact in future cases depends on underlying assumptions about the ends and means of legal interpretation. When those assumptions vary among judges, so too will applications of stare decisis.
For stare decisis to promote the continuity and impersonality of law, it requires an analytical framework designed not for an idealized world of interpretive consensus, but rather for a second-best world of interpretive pluralism.
Second-best stare decisis emphasizes doctrinal factors whose content does not depend on adherence to any particular interpretive methodology. The second-best approach also contemplates structural solutions, such as supermajority voting requirements, for promoting collaboration across methodological lines. Finally, second-best stare decisis pursues compromises that emphasize the common ground among competing schools of interpretation. The result is a reconceptualized doctrine of stare decisis that seeks to transcend interpretive disputes and underscore a court’s status as a unified institution working across time—an institution that is something different, and something greater, than its individual members.