On Lawson On Precedent

Abstract

Gary Lawson has done it again. He's given us an obviously elegant, apparently logical, and yet utterly perverse argument. Indeed I think it's that combination that gives Gary so much pleasure. Now, far be it from me today to try to refute Gary's argument. I'm not that smart, or perhaps not that dumb. I do believe Gary has very usefully focused attention on the status of precedent for those of us who subscribe to Marbury's vision of constitutionalism. At the very least, he's fixed our gaze on the tension between stare decisis and quite common modes of constitutional argument today. Let me sketch out four possible responses that people who might not be convinced might try to pursue. I'm not going to develop any of these in completeness, but I think this is where the debate should go if we take Gary's argument seriously, as I think we should.