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A Government Of Laws And Not Men: Prohibiting Non-Precedential Opinions By Statute Or Procedural Rule, Amy E. Sloan
A Government Of Laws And Not Men: Prohibiting Non-Precedential Opinions By Statute Or Procedural Rule, Amy E. Sloan
All Faculty Scholarship
Non-precedential judicial opinions issued by the federal appellate courts have generated significant controversy. Given that the federal appellate courts are unlikely to abandon the practice of issuing non-precedential opinions on their own, what other options exist for prohibiting the practice? This article discusses the constitutionality of a procedural rule or statute prohibiting the federal appellate courts from prospectively designating selected opinions as non-precedential. It explains how the rules governing non-precedential opinions allow federal appellate courts to "opt out" of their own rules of precedent. It then examines the rulemaking process, showing how the Federal Rules of Appellate Procedure are promulgated …
Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman
Resorting To External Norms And Principles In Constitutional Decision-Making, Alvin L. Goldman
Law Faculty Scholarly Articles
Given the very significant role of constitutional law in the American political system and the fact that Supreme Court Justices are appointed through a political process, it is understandable that the appropriate judicial approach to resolving constitutional issues often is the subject of political commentary. Unfortunately, discourse by politicians concerning this issue seldom rises to the deserved level of wisdom. One of President George W. Bush's public mantras is illustrative of political commentary respecting federal judicial appointments: "I'm going to put strict constructionists on the bench." On its face, and as understood by politically naive audiences, the statement appears to …