Law Commons^™

Law School News: Broadening The Perspective 12/04/2019, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Special Justifications, Randy J. Kozel

Randy J Kozel

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 …

The Rhetoric Of Constitutional Law, Erwin Chemerinsky

Erwin Chemerinsky

I spend much of my time dealing with Supreme Court opinions. Usually, I download and read them the day that they are announced by the Court. I edit them for my casebook and teach them to my students. I write about them, lecture about them, and litigate about them. My focus, like I am sure most everyone's, is functional: I try to discern the holding, appraise the reasoning, ascertain the implications, and evaluate the decision's desirability. Increasingly, though, I have begun to think that this functional approach is overlooking a crucial aspect of Supreme Court decisions: their rhetoric. I use …

The Race Horse That Wouldn't Die: On Herrera V. Wyoming, Benjamin Cantor

Duke Journal of Constitutional Law & Public Policy Sidebar

In Herrera v. Wyoming, the Supreme Court is considering how to reconcile the Crow Tribe’s hunting right with Wyoming’s sovereignty. This endeavor requires examining nineteenth-century treaties and precedents to decipher the intents of the Crow Tribe and the United States government. If the Court’s decision includes a clear articulation of whether Native American treaty rights may be truncated by mere implication, tribes nationwide may be at risk of losing treaty rights they have enjoyed for centuries. In making its decision, the Supreme Court will also have to weigh the advantages and disadvantages of overturning precedent and of undermining its …

Statutory Interpretation, Administrative Deference, And The Law Of Stare Decisis, Randy J. Kozel

Journal Articles

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving superstrong deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are …

Chambliss V. Carefirst, Inc., Sarah Fucci

NYLS Law Review

No abstract provided.

A Patent Reformist Supreme Court And Its Unearthed Precedent, Samuel F. Ernst

Fordham Intellectual Property, Media and Entertainment Law Journal

How is it that the Supreme Court, a generalist court, is leading a project of innovation reform in our times while the court of appeals established to encourage innovation is having its precedent stricken down time and again? This decade the Supreme Court has issued far more patent law decisions than in any decade since the passage of the Patent Act of 1952. In doing so, the Supreme Court has overruled the Federal Circuit in roughly threequarters of the patent cases in which the Supreme Court has issued opinions. In most of these cases, the Supreme Court has established rules …

Justice Gorsuch's Views On Precedent In The Context Of Statutory Interpretation, Hillel Y. Levin

Scholarly Works

The doctrine of precedent, in its stare decisis form, presents a challenge to any originalist. This doctrine provides that a court should (at least sometimes) be bound by its own precedent, even if that precedent was wrongly decided in the first place. Yet if the original meaning of the text at issue is a judge’s focus, why should an intervening decision of the court—and a mistaken one at that— matter at all? Despite this tension, every originalist also at least purports to care about precedent.

This Essay focuses on Justice Gorsuch’s apparent views on precedent in the context of statutory …

Where The Law Ends - Part 1: M&G; Polymers V. Tackett And Cnh Industrial V. Reese - Federal Labor Policy, The Interpretation Of Collective Bargaining Agreements, And The Failure Of Stare Decisis, Roger J. Mcclow

Marquette Benefits and Social Welfare Law Review

No abstract provided.

Precedent And Dialogue In Investment Treaty Arbitration, Richard C. Chen

Faculty Publications

Since the turn of the century, investment treaty arbitration (ITA) tribunals have begun citing past decisions with increasing frequency. They do so despite the absence of any formal doctrine of stare decisis and the presence of structural obstacles to the use of precedent in this context. Scholarship in this area has focused on explaining the rise of this de facto doctrine of precedent and evaluating the merits of the practice. Few have grappled with more practical questions about how precedent should operate in this unique sphere, but even a cursory examination of ITA decisions would reveal that some order and …

Legal Sets, Jeremy N. Sheff

Faculty Publications

In this Article, I propose that the practices of legal reasoning and analysis are helpfully understood as being primarily concerned not with rules or propositions, but with sets. This Article develops a formal model of the role of sets in the practices of legal actors in a common-law system defined by a recursive relationship between cases and rules. In doing so, it demonstrates how conceiving of legal doctrines as a universe of discourse comprising (sometimes nested or overlapping) sets of cases can clarify the logical structure that governs marginal cases and help organize the available options for resolving such cases …