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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. …

What If Slaughter-House Had Been Decided Differently?, Kermit Roosevelt Iii

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In The Slaugherhouse Cases, the Supreme Court gutted the Privileges or Immunities Clause of the Fourteenth Amendment. Though academics continue to argue that Slaughterhouse was wrongly decided and should be overruled, the practical consequences of doing so might not be enormous. The constitutional rights the dissenters found in the Privileges or Immunities Clause are part of our current law anyway, through the Due Process and Equal Protection Clauses. But this does not mean that Slaughterhouse cost us nothing. This article explores how our law might be different had Slaughterhouse been decided differently. Rather than taking up the role that Privileges …

Justice Scalia's Constitution--And Ours, Kermit Roosevelt Iii

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