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Stare Decisis In Lower Courts: Predicting The Demise Of Supreme Court Precedent, David C. Bratz
Stare Decisis In Lower Courts: Predicting The Demise Of Supreme Court Precedent, David C. Bratz
Washington Law Review
This Comment contends that under limited circumstances lower courts may refuse to follow authoritative precedent. The Comment begins by distinguishing the doctrine of stare decisis in the Supreme Court and the doctrine as applied to lower courts. Next, the Comment discusses the doctrine of implicit overrule and suggests that the concept of implicit overrule is not sufficiently broad to encompass all of the circumstances in which lower courts should be allowed to disregard precedent. Using McCray as a paradigm, this Comment concludes that lower courts, within narrow limits, should be free to disregard even authoritative precedent when it is predictable …
The Activist Legacy Of The New Deal Court, Raoul Berger
The Activist Legacy Of The New Deal Court, Raoul Berger
Washington Law Review
The activist legacy of the New Deal Court was free-wheeling adjudication. It sprang from the Four Horsemen's obdurate identification of their economic and social predilections with constitutional mandates, halting the Rooseveltian reform measures in their tracks, and bringing on the Court-Packing Plan. Although the Plan failed, it was followed by a shake-out resulting in the "reconstructed Court,'' a Court that had learned from its predecessors how to manipulate the Constitution, albeit for a new set of goals.
Is There Any Indian "Law" Left? A Review Of The Supreme Court's 1982 Term, Russel Lawrence Barsh
Is There Any Indian "Law" Left? A Review Of The Supreme Court's 1982 Term, Russel Lawrence Barsh
Washington Law Review
The Supreme Court's decisions have been characterized by an absence of general principles, which the Justices rationalize as the "particularization" of their analysis. The standards that do appear from time to time, such as "balancing interests" and "implied repeal," are merely euphemisms for discretion. There has been no consistent authorship of opinions because the Justices hold little enthusiasm for Indian law cases, and the Court seems to treat each dispute as if it were a matter of first impression. "Generalizations on this subject have become . . . treacherous" as a result of the Court's failure to make and stick …