MORE LAWBLOGGING! Once again, I will rush in where angels fear to blog, as I take issue with people who know more than I do about the law. For prior instances of my hubris, click here (me vs. Prof. Jack Balkin) and here (me vs. Prof. Lawrence Solum).

This time I’m arguing with Solum again, addressing what strike me as significant flaws in Solum’s defense of “really really strong stare decisis,” the belief that the Supreme Court should in all cases put precent above fidelity to text and history. Hereafter that view will be called RRSD.

I think that Professor Solum won’t take too much offense at my presumption here, because his general cast of mind seems to be pretty populist; I get the impression that he believes the inner workings of the law (or at least the theory of it) should be roughly intelligible to the laity. After all, we have to obey it–might be good if we can understand it!

So. I have three disagreements, a question, and a brief set of suggestions. We’ll run through these in reverse order. Sorry if this gets confusing–there will be a couple of points where I have to say, “More on this in a moment!”, but I think at the end you’ll see why I structured it this way.

And please do check out Solum’s post–it’s a good hardcore argument.