Law Commons^™

Expanding Stare Decisis: The Role Of Precedent In The Unfolding Dialectic Of Brady V. Maryland, Colin Starger

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Does stare decisis constrain the expansion of constitutional doctrine? Does existing precedent preclude the Supreme Court from expanding a criminal defendant’s right to exculpatory evidence? While commentators frequently clash on when stare decisis should prevent the Court from overruling its own precedents, the question of when fidelity to precedent should inhibit doctrinal expansion is surprisingly under-theorized. This Article begins to fill this gap through an in-depth case study of stare decisis and the expansion of criminal due process doctrine.

This Article analyzes the longstanding constitutional dialectic between procedural and substantive schools of criminal due process. Focus is on Brady v. …

Under-The-Table Overruling, Christopher J. Peters

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In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …