The Role of Precedent in Constitutional Adjudication: An Introspection

30 Pages Posted: 20 Mar 2008 Last revised: 25 Mar 2008

Abstract

Much scholarly interest in recent years has centered on the proper role of precedent in constitutional adjudication, especially in the Supreme Court. This essay seeks to contribute to this lively and important debate, first, by summarizing (and categorizing) the principal approaches to the issue that have been advanced by scholars and judges, second, by explaining and defending my own position, and, finally, by testing that position in the context of an especially difficult problem. In the process, the essay seeks to cast light on some broader questions about the role of theory in the judicial process.

Keywords: Constitutional law, Constitutional adjudication, Precedent, Stare decisis

JEL Classification: K19, K40, K41

Suggested Citation

Shapiro, David L., The Role of Precedent in Constitutional Adjudication: An Introspection. Texas Law Review, Vol. 86, No. 5, 2008, Harvard Public Law Working Paper No. 08-08, Available at SSRN: https://ssrn.com/abstract=1108440

David L. Shapiro (Contact Author)

Harvard Law School ( email )

1575 Massachusetts
Hauser 406
Cambridge, MA 02138
United States
617-495-4618 (Phone)
617-496-4880 (Fax)

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