In recent years, there has been a surprising outpouring of academic literature on the proper role of precedent in constitutional cases. The author's purpose is to add to the reams of commentary on the issue. But he hopes to contribute something not only by summarizing the debate for any novices who may read this, but more significantly, by explaining and then testing his own position in an attempt to apply it as if he were a Supreme Court Justice. Such an effort may cast light on several questions. For example, is it useful or counterproductive for a judge to try to adopt a theory about how to handle what might be called a metaquestion in his role as constitutional arbiter? After such an effort, will the theory adopted have an effect on the judge's votes or his rationale for those votes? This article begins by summarizing the theoretical and empirical literature on this question, with a comment or question here and there.
The Role of Precedent in Constit
Pages to are hidden for
"The Role of Precedent in Constitutional Adjudication: An Introspection"Please download to view full document