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Full-Text Articles in Law and Politics
How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon
How The Prohibition On "Under-Ruling" Distorts The Judicial Function (And What To Do About It), A. Christopher Bryant, Kimberly Breedon
Pepperdine Law Review
Lower courts face a dilemma when forced to choose between older Supreme Court precedent that directly controls the present legal dispute and an intervening Supreme Court ruling that relies on rationale which erodes or undermines the rationale of the direct precedent. Nearly thirty years ago, the Supreme Court announced a rule requiring lower courts to follow the older precedent and disregard any inconsistency resulting from intervening rulings, effectively barring lower courts from “under-ruling” the older Supreme Court precedent. This prohibition on “under-ruling,” here referred to as the “Agostini Rule,” reflects a departure from the core rule-of-law values requiring similar cases …
Our Principled Constitution, Mitchell N. Berman
Our Principled Constitution, Mitchell N. Berman
All Faculty Scholarship
Suppose that one of us contends, and the other denies, that transgender persons have constitutional rights to be treated in accord with their gender identity. It appears that we are disagreeing about “what the law is.” And, most probably, we disagree about what the law is on this matter because we disagree about what generally makes it the case that our constitutional law is this rather than that.
Constitutional theory should provide guidance. It should endeavor to explain what gives our constitutional rules the contents that they have, or what makes true constitutional propositions true. Call any such account a …