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"Let Congress Do It": The Case For An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall
"Let Congress Do It": The Case For An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall
Michigan Law Review
The sporadic way that various members of the Supreme Court and the legal community treat the principle of stare decisis is increasingly striking. At times, the rule of stare decisis appears to be trotted out in defense of decisions that were actually reached on quite independent grounds. At other times, the dictates of the rule appear to be casually ignored when other factors call for the overruling of a precedent. It is tempting, therefore, to dismiss the rule of stare decisis as a mere rhetorical device, much like the question of whether a Supreme Court nominee's judicial philosophy is an …
A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel
A Comment On The Rule Of Law Model Of Separation Of Powers, Robert F. Nagel
Publications
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Bad Judicial Activism And Liberal Federal-Courts Doctrine: A Comment On Professor Doernberg And Professor Redish, Jack M. Beermann
Bad Judicial Activism And Liberal Federal-Courts Doctrine: A Comment On Professor Doernberg And Professor Redish, Jack M. Beermann
Faculty Scholarship
JUDUCIAL ACTIVISM IS often portrayed as a liberal vice. This perception is wrong both historically and, as Professor Redish argues, 3 currently as well. The federal judiciary has been and still is an activist institution, working with both substantive law and jurisdictional rules to achieve its own policy goals. It has done this in statutory, constitutional, and common-law matters. Specifically, the Supreme Court of the United States has actively-shaped the jurisdiction of the federal courts in a restrictive and generally conservative manner.
Professors Doernberg4 and Redish attack this last form of activism by the federal courts, activism in shaping …