Open Access. Powered by Scholars. Published by Universities.®
Articles 1 - 3 of 3
Full-Text Articles in Law
Aggregate Stare Decisis, Kiel Brennan-Marquez
Aggregate Stare Decisis, Kiel Brennan-Marquez
Indiana Law Journal
The fate of stare decisis hangs in the wind. Different factions of the Supreme Court are now engaged in open debate—echoing decades of scholarship—about the doctrine’s role in our constitutional system. Broadly speaking, two camps have emerged. The first embraces the orthodox view that stare decisis should reflect “neutral principles” that run orthogonal to a case’s merits; otherwise, it will be incapable of keeping the law stable over time. The second argues that insulating stare decisis from the underlying merits has always been a conceptual mistake. Instead, the doctrine should focus more explicitly on the merits—by diagnosing the magnitude of …
Congress's Competing Motivations: What Chevron Can Tell Us About Constitutional Acquiescence, George Krug
Congress's Competing Motivations: What Chevron Can Tell Us About Constitutional Acquiescence, George Krug
Indiana Law Journal
This Note asks under what conditions the Supreme Court would find evidence of post- Founding historical practice persuasive in separation of powers debates. This Note focuses on two theories of how evidence of a long-standing historical practice might be relevant in separation of powers disputes: constitutional liquidation and historical gloss. According to both theories, the authority of a long-standing historical practice depends in part on the motivations driving the relevant branch of government to engage in that practice. Current scholarship on constitutional liquidation and historical gloss, however, has not yet explored fully these motivations in a way that recognizes the …
Taming Sherman's Wilderness, Derrian Smith
Taming Sherman's Wilderness, Derrian Smith
Indiana Law Journal
This Note proceeds in four Parts. Part I outlines the interpretive difficulties spawned by the vagueness of the Sherman Act—particularly, the judiciary’s necessary but undeniable departures from the text of the statute and the resulting doctrinal confusion. Part II considers ways in which the judiciary’s decision-making in Sherman Act cases approximates agency rulemaking and whether it makes sense to delegate interpretive authority to an antitrust agency. Yet, while the agency solution has upside, it would not easily escape criticisms that the Act does not provide sufficient notice of the conduct it proscribes and that the Act is an impermissible delegation …