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Full-Text Articles in Law
The Rule Of Law And The Perils Of Precedent, Randy J. Kozel
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 …
Unbundling Constitutionality, Richard A. Primus
Unbundling Constitutionality, Richard A. Primus
Articles
Constitutional theory features a persistent controversy over the source or sources of constitutional status, that is, over the criteria that qualify some rules as constitutional rules. This Article contends that no single criterion characterizes all of the rules that American law treats as constitutional, such that it is a mistake to think of constitutionality as a status with necessary conditions. It is better to think of constitutionality on a bundle-of-sticks model: different attributes associated with constitutionality might or might not be present in any constitutional rule. Analysts should often direct their attention more to the separate substantive properties that are …