SLevinson at MAIL.LAW.UTEXAS.EDU
Wed Oct 23 14:29:03 PDT 2002
Randy Bezanson writes:
>Do you mean, Sandy, that stare decisis is "authoritarian" only when
>applied to prior decisions all agree are correct?
I wonder if he meant to write "incorrect" instead of "correct." My view
(and what I teach my classes) is that if one "chooses" to follow an earlier
decision that one believes was correct, then one isn't really "following
precedent," but, rather, being persuaded by a prior argument. "Following
precedent" is, indeed, feeling constrained to adhere to something one
believes is stupid, evil, decidedly suboptimal, or whatever, because of the
"authority" claimed by the prior decisionmaker to end debate on the matter.
I tend to be a Jacksonian (Andrew) who believes that prior opinions are
entitled "only to so much respect as their reasoning leads them to deserve."
More information about the Conlawprof