33 Const. Comment. 471 (2018)
The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices have described as fundamental.
Randy J. Kozel,
33 Const. Comment. 471 (2018).
Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1356