Jurisprudence Commons^™

Janus-Faced Judging: How The Supreme Court Is Radically Weakening Stare Decisis, Michael Gentithes

William & Mary Law Review

Drastic changes in Supreme Court doctrine require citizens to reorder their affairs rapidly, undermining their trust in the judiciary. Stare decisis has traditionally limited the pace of such change on the Court. It is a bulwark against wholesale jurisprudential reversals. But, in recent years, the stare decisis doctrine has come under threat.

With little public or scholarly notice, the Supreme Court has radically weakened stare decisis in two ways. First, the Court has reversed its long-standing view that a precedent, regardless of the quality of its reasoning, should stand unless there is some special, practical justification to overrule it. Recent …

Precedent In A Polarized Era, Zachary S. Price

Notre Dame Law Review

My Review begins below in Part I with a brief synopsis of Professor Kozel’s argument. Part II then discusses his theory’s particular value, and challenges, in our historical moment of acute polarization and political conflict over constitutional law. To make Part II’s claims more concrete, Part III then turns to Janus and Wayfair. It uses the two cases to illustrate pressures courts may face in the years ahead and assesses how well these decisions accord with Kozel’s theory. The Review ends with a conclusion reflecting more broadly on the importance of stare decisis and other institutional restraints in the current …

Precedent And Disagreement, Glen Staszewski

Michigan Law Review

A review of Randy J. Kozel, Settled Versus Right: A Theory of Precedent.

Dead Precedents, Riley T. Svikhart

Notre Dame Law Review Reflection

Part I explores the Roberts Court’s reluctance to overrule Supreme Court precedents more thoroughly. Part II provides a modest account for this phenomenon. Section II.A considers the relationship between the Roberts Court’s reluctance to overrule Supreme Court precedents and its law declaration bent. Section II.B evaluates this reluctance in light of the doctrinal commitment of stare decisis. Finally, Section II.C examines the link between the Roberts Court’s treatment of dying precedents and its trademark adherence to the constitutional avoidance doctrine.

The Highest Court: A Dialogue Between Justice Louis Brandeis And Justice Antonin Scalia On Stare Decisis, P. Thomas Distanislao Iii

University of Richmond Law Review

No abstract provided.

Precedent And Speech, Randy J. Kozel

Michigan Law Review

The U.S. Supreme Court has shown a notable willingness to reconsider its First Amendment precedents. In recent years, the Court has departed from its prior statements regarding the constitutional value of false speech. It has revamped its process for identifying categorical exceptions to First Amendment protection. It has changed its positions on corporate electioneering and aggregate campaign contributions. In short, it has revised the ground rules of expressive freedom in ways large and small. The Court generally describes its past decisions as enjoying a presumption of validity through the doctrine of stare decisis. This Article contends that within the context …

The Curious Case Of Cell Phone Location Data: Fourth Amendment Doctrine Mash-Up, Monu Bedi

Northwestern University Law Review

Police surveillance ability and information gathering capacity have a dynamic relationship with technology. Greater advancements in technology make it easier for the police to surveil individuals and collect information. This state of affairs leads to heightened concerns over Fourth Amendment protection. This issue has most recently played out in the context of police collecting cell phone location data. Courts disagree on whether and to what extent this data garners Fourth Amendment protection. Underlying this disagreement rests a hitherto overlooked tension between two interrelated Fourth Amendment doctrines—the third-party and the public disclosure doctrines. While both vitiate privacy protection and are commonly …

What's A Lower Court To Do? Limiting Lawrence V. Texas And The Right To Sexual Autonomy, John Tuskey

Touro Law Review

No abstract provided.

The Week After, Lawrence K. Karlton

Touro Law Review

No abstract provided.

The Scope Of Precedent, Randy J. Kozel

Michigan Law Review

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court’s broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta. This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent’s forward- looking effect should not depend on the …

Precedent: What It Is And What It Isn't; When Do We Kiss It And When Do We Kill It?, Ruggero J. Aldisert

Pepperdine Law Review

No abstract provided.

The Rule Of Law And The Perils Of Precedent, Randy J. Kozel

Michigan Law Review First Impressions

In a world where circumstances never changed and where every judicial decision was unassailably correct, applying the doctrine of stare decisis would be a breeze. Fidelity to precedent and commitment to sound legal interpretation would meld into a single, coherent enterprise. That world, alas, is not the one we live in. Like so much else in law, the concept of stare decisis encompasses a series of trade-offs-and difficult ones at that. Prominent among them is the tension between allowing past decisions to remain settled and establishing a body of legal rules that is flexible enough to adapt and improve over …

Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron

Michigan Law Review

Stare decisis remains a controversial feature of the legal systems that recognize it. Some jurists argue that the doctrine is at odds with the rule of law; others argue that there are good rule-of-law arguments in favor of stare decisis. This Article considers one possible good rule-of-law argument. It suggests that we should approach stare decisis in a layered way, looking at what the rule of law requires of the various judges involved in the development of a precedent. One rule-of-law principle, the principle of constancy, counsels against lightly overturning such precedents as there are. But that is not in …

Stare Decisis In The Inferior Courts Of The United States, Joseph W. Mead

Nevada Law Journal

No abstract provided.

Stare Decisis And Constitutional Text, Jonathan F. Mitchell

Michigan Law Review

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court's stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances …

Structure And Precedent, Jeffrey C. Dobbins

Michigan Law Review

The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process offederal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit, …

Precedent In The Federal Courts Of Appeals: An Endangered Or Invasive Species?, John B. Oakley

The Journal of Appellate Practice and Process

No abstract provided.

A Simple Prescription For Texas's Ailing Court System: Stronger Stare Decisis., Andrew T. Solomon

St. Mary's Law Journal

Several Texas Supreme Court Justices have recently criticized Texas’s appellate justice system for its failure to provide consistency and the unfairness it produces, namely how litigants are treated differently despite the identical factual circumstances. Despite the warnings of various Texas Justices, neither the Texas Supreme Court nor the Texas Legislature have done much to rectify the lack of uniform justice received by Texas litigants. Most of the proposals to reform the Texas appellate justice systems’ unfairness have focused exclusively on structural changes. While structural changes could help reduce inconsistent “justice”, these reforms fail to address the main substantive problem—Texas’s weak …

How Is Constitutional Law Made?, Tracey E. George, Robert J. Pushaw Jr.

Michigan Law Review

Bismarck famously remarked: "Laws are like sausages. It's better not to see them being made." This witticism applies with peculiar force to constitutional law. Judges and commentators examine the sausage (the Supreme Court's doctrine), but ignore the messy details of its production. Maxwell Stearns has demonstrated, with brilliant originality, that the Court fashions constitutional law through process-based rules of decision such as outcome voting, stare decisis, and justiciability. Employing "social choice" economic theory, Professor Stearns argues that the Court, like all multimember decisionmaking bodies, strives to formulate rules that promote both rationality and fairness (p. 4). Viewed through the lens …

Lee V. Weisman: Whither The Establishment Clause And The Lemon V. Kurtzman Three-Pronged Test?, Thomas A. Schweitzer

Touro Law Review

No abstract provided.

Judging In The Quiet Of The Storm., Shirley S. Abrahamson

St. Mary's Law Journal

Justice Benjamin Cardozo evaluates the elements he believes motivate judges in deciding cases in The Nature of the Judicial Process. Judge Cardozo focuses primarily on common-law courts deciding common-law cases. Although state-court dockets cover a wider variety of topics today and the legal landscape has changed, The Nature of the Judicial Process remains influential. The basis of Judge Cardozo’s approach is to first extract principles from past cases and apply them to new fact situations. Cardozo refers to this process as the method of philosophy. As precedent cannot readily solve all new disputes, this process may require judges select from …

Right To Counsel

Touro Law Review

No abstract provided.

Interaction Between State And Federal Right To Counsel: The Overruling Of Bartolomeounsel: The Overruling Of Bartolomeo, Joseph D. Sullivan

Touro Law Review

No abstract provided.

Contempt Of Congress: A Reply To The Critics Of An Absolute Rule Of Statutory Stare Decisis, Lawrence C. Marshall

Michigan Law Review

In the law school tradition of "suspending belief," Professor Eskridge has created a hypothetical in which I, in my first case as Chief Justice of the United States, must decide whether to adhere to various antiquated and seemingly erroneous precedents interpreting the Mann Act. Eskridge assumes that I will feel compelled to adhere to these decisions, for to do otherwise, he contends, would force me to abandon the proposal for an absolute rule of statutory stare decisis that I advanced recently in this Law Review. Eskridge then offers a variety of critiques of my thesis, coming from perspectives as diverse …

Government Nonacquiescence Case In Point: Social Security Litigation

Touro Law Review

No abstract provided.

Embezzled Funds As Taxable Income: A Study In Judicial Footwork, Jerome B. Libin, George R. Haydon Jr.

Michigan Law Review

The James case might not be worthy of extensive comment if its only significance rested on the decision that embezzled funds constitute taxable income in the year of misappropriation. But close analysis of the five separate opinions that were written indicates that James may have considerable significance beyond its precise holding.

Wasserstrom: The Judicial Decision- Toward A Theory Of Legal Justification, William B. Harvey

Michigan Law Review

A Review of The Judicial Decision- Toward A Theory of Legal Justification By Richard A. Wasserstrom.

"Overruling" Opinions In The Supreme Court, Albert P. Blaustein, Andrew H. Field

Michigan Law Review

Despite its vaunted reputation for rectitude, the United States Supreme Court has been the first to deny its own judicial infallibility. For in at least ninety decisions, dating as far back as 1810 and as recent as its 1956 Term, the Supreme Court has made public confession of error by overruling its previous determinations.

This is a study of those ninety decisions-a statistical accounting of overruling cases and cases overruled, and a listing of the judges who agreed and disagreed with what was said and done. And this is a study of the "right to be wrong" -an inquiry into …

Justice Jackson And The Judicial Function, Paul A. Weidner

Michigan Law Review

Much of the pattern of division in the present Supreme Court is traceable to basic differences of opinion regarding the proper role of a judge in the process of constitutional adjudication. Some students of the Court, yielding to the current fashion of reducing even intricate problems to capsule terms, have tried to explain the controversy by classifying the justices as either "liberals" or "conservatives." A second school poses the disagreement largely in terms of judicial "activism" as opposed to judicial "restraint." It is this view that has the greater relevance for the present discussion. C.H. Pritchett, one of the leading …

Precedent In Past And Present Legal Systems, C. Sumner Lobingier

Michigan Law Review

The prevailing notion that stare decisis is peculiar to the Anglican Legal System is quite provincial and far from correct. On the contrary, the principle is inherent in every legal system, at least in its primitive stage; for the earliest form of law is custom, and the "core of custom" is precedent, not necessarily judicial, but something quite as authoritative.