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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 …
The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao, Iii
The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao, Iii
Law Student Publications
The scene is the main reading room in the Supreme Court library. It is 12:01 AM on a Thursday night, and a hapless law clerk' named Madison Nomos' is working on a draft of a dissenting opinion for his Justice. Specifically, Nomos is researching whether an earlier Supreme Court case- one with which his Justice vehemently disagrees- should play a significant role in the Court's analysis of an issue that has gripped the nation. Nomos's Justice was recently confirmed, and this will be her first opportunity to firmly state her views on stare decisis in the Supreme Court. She has …
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 …