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Full-Text Articles in Law
Special Justifications, Randy J. Kozel
Special Justifications, Randy J. Kozel
Journal Articles
The Supreme Court commonly asks whether there is a “special justification” for departing from precedent. In this Response, which is part of a Constitutional Commentary symposium on Settled Versus Right: A Theory of Precedent, I examine the existing law of special justifications and describe its areas of uncertainty. I also compare the Court’s current doctrine with a revised approach to special justifications designed to separate the question of overruling from deeper disagreements about legal interpretation. The aspiration is to establish precedent as a unifying force that enhances the impersonality of the Court and of the law, promoting values the Justices …
Brief Of Amici Curiae Law Professors And Economists In Support Of Petitioner, Edward A. Zelinsky
Brief Of Amici Curiae Law Professors And Economists In Support Of Petitioner, Edward A. Zelinsky
Amicus Briefs
Amici are professors of tax law and economics at universities across the United States. As scholars and teachers, they have considered the economic consequences of this Court’s decision in Quill Corp. v. North Dakota, 504 U.S. 298 (1992), and have concluded that Quill’s dormant Commerce Clause holding should be overruled. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in Appendix A.
Brief Of Tax Law Professors As Amici Curiae In Support Of Petitioner, Edward A. Zelinsky
Brief Of Tax Law Professors As Amici Curiae In Support Of Petitioner, Edward A. Zelinsky
Amicus Briefs
Amici are professors of tax law at universities across the United States. As scholars and teachers, they have considered the doctrinal roots and practical consequences of judicial limits on state and local taxation. Amici join this brief solely on their own behalf and not as representatives of their universities. A full list of amici appears in the Appendix to this brief.
Strategic Publication, Ben Grunwald
Strategic Publication, Ben Grunwald
Faculty Scholarship
Under the standard account of judicial behavior when a panel of appellate court judges cannot agree on the outcome of a case, the panel has two options. First, it can publish a divided decision with a majority opinion and a dissent. Panels usually do not take this route because a dissent dramatically increases the probability of reversal. The second and more common option is for the panel to bargain and compromise over the reasoning of the decision and then publish a unanimous opinion.
This Article argues that a divided panel has a third option: strategic publication. The panel can choose …
Precedent And Constitutional Structure, Randy J. Kozel
Precedent And Constitutional Structure, Randy J. Kozel
Journal Articles
The Constitution does not talk about precedent, at least not explicitly, but several of its features suggest a place for deference to prior decisions. It isolates the judicial function and insulates federal courts from official and electoral control, promoting a vision of impersonality and continuity. It charges courts with applying a charter that is vague and ambiguous in important respects. And it was enacted at a time when prominent thinkers were already discussing the use of precedent to channel judicial discretion. Taken in combination, these features make deference to precedent a sound inference from the Constitution’s structure, text, and historical …
Precedent And The Semblance Of Law, Stephen E. Sachs
Precedent And The Semblance Of Law, Stephen E. Sachs
Faculty Scholarship
Like its author, Randy Kozel's *Settled Versus Right* is insightful, thoughtful, and kind, deeply committed to improving the world that it sees. But despite its upbeat tone, the book paints a dark picture of current law and the current Court. It depicts a society whose judges are, in a positive sense, *lawless* -- not because they disregard the law, but because they are without law, because they have no shared law to guide them. What they do share is an institution, a Court, whose commands are generally accepted. So *Settled Versus Right* makes the best of what we've got, reorienting …
The Supreme Court's Regulatory Takings Doctrine And The Perils Of Common Law Constitutionalism, Thomas W. Merrill
The Supreme Court's Regulatory Takings Doctrine And The Perils Of Common Law Constitutionalism, Thomas W. Merrill
Faculty Scholarship
My objective in this lecture is to take seriously the observation that constitutional law in the United States, as expounded by its Supreme Court, bears far more resemblance to common law than to textual interpretation. We live under a written Constitution. But the main body of that Constitution, including the first ten amendments we call the Bill of Rights, is very old, having been adopted nearly 230 years ago. As time marches on, judicial interpretations of this venerable text have piled up. Constitutional disputes today are almost always resolved by the courts applying this growing body of precedent. Constitutional law …
To Speak Or Not To Speak, That Is Your Liberty: Janus V. Afscme, David Forte
To Speak Or Not To Speak, That Is Your Liberty: Janus V. Afscme, David Forte
Law Faculty Articles and Essays
Some Supreme Court precedents go through extensive death spasms before being interred. Lochner v. New York, Plessy v. Ferguson, and Austin v. Michigan Chamber of Commerce come to mind. Others like Chisholm v. Georgia and Minersville School District v. Gobitis incurred a swift and summary execution. Still others, overtaken by subsequent cases, remain wraith-like presences among the Court’s past acts: Beauharnais v. Illinois and Buck v. Bell, for example, remain “on the books.”