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Full-Text Articles in Law
Mostly Settled, But Right For Now, Corinna Lain
Mostly Settled, But Right For Now, Corinna Lain
Law Faculty Publications
Randy Kozel’s book, Settled Versus Right: A Theory of Precedent, is a laudable effort to make the law more stable, more cohesive, more impersonal — an effort to show that the law can endure even as Justices come and go. The core of his contribution is a proposed doctrine of stare decisis that disentangles deference to precedent from the interpretive methodologies that led to the precedent in the first place, and that so often determine the amount of deference a precedent gets. As a purely doctrinal project, Settled Versus Right naturally assumes that if we fix the doctrine, we’ll fix …
Precedent And Justice, William D. Bader, David R. Cleveland
Precedent And Justice, William D. Bader, David R. Cleveland
Law Faculty Publications
Precedent is the cornerstone of common law method. It is the core mechanism by which the common law reaches just outcomes. Through creation and application of precedent, common law seeks to produce justice. The appellate courts' practice of issuing unpublished, non-precedential opinions has generated considerable discussion about the value of precedent, but that debate has centered on pragmatic and formalistic values. This essay argues that the practice of issuing non-precedential opinions does more than offend constitutional dictates and present pragmatic problems to the appellate system; abandoning precedent undermines justice itself. Issuance of the vast majority of decisions as nonprecedential tears …
Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland
Clear As Mud: How The Uncertain Precedential Status Of Unpublished Opinions Muddles Qualified Immunity Determinations, David R. Cleveland
Law Faculty Publications
No abstract provided.
Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland
Draining The Morass: Ending The Jurisprudentially Unsound Unpublication System, David R. Cleveland
Law Faculty Publications
No abstract provided.
Overturning The Last Stone: The Final Step In Returning Precedential Status To All Opinions, David R. Cleveland
Overturning The Last Stone: The Final Step In Returning Precedential Status To All Opinions, David R. Cleveland
Law Faculty Publications
No abstract provided.
Originalism, Popular Sovereignty And Reverse Stare Decisis, Kurt T. Lash
Originalism, Popular Sovereignty And Reverse Stare Decisis, Kurt T. Lash
Law Faculty Publications
Although all interpretive methods must grapple with the issue of stare decisis, the issue is particularly acute for originalists due to the potentially radical discontinuity between original meaning and modern doctrine. An unmediated enforcement of original understanding of the Constitution would likely reverse countless precedents and impose unacceptably high costs in terms of the rule of law. On the other hand, upholding a precedent despite its variance with the original understanding undermines the very legitimacy of legal review according to most theories of originalism. Focusing on the most common normative basis for originalism, popular sovereignty, the article identifies those cases …