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Under-The-Table Overruling, Christopher J. Peters
Under-The-Table Overruling, Christopher J. Peters
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In this contribution to a Wayne Law Review symposium on the first three years of the Roberts Court, the author normatively assesses the Court's practice of "under-the-table overruling," or "underruling," in high-profile constitutional cases involving abortion, campaign-finance reform, and affirmative action. The Court "underrules" when it renders a decision that undercuts a recent precedent without admitting that it is doing so. The author contends that underruling either is not supported by, or is directly incompatible with, three common rationales for constitutional stare decisis: the noninstrumental rationale, the predictability rationale, and the legitimacy rationale. In particular, while the latter rationale - …
The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric Easton
The Colonel's Finest Campaign: Robert R. Mccormick And Near V. Minnesota, Eric Easton
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Today, media corporations and their professional and trade associations, along with organizations like Reporters Committee for Freedom of the Press and the American Civil Liberties Union, carefully monitor litigation that implicates First Amendment values and decide whether, when, and how to intervene. It was not always so. Litigation by an institutional press to avoid or create doctrinal precedent under the First Amendment really began with the appointment of Col. Robert R. McCormick to head the ANPA's Committee on Freedom of the Press in the spring of 1928 and his involvement in Near v. Minnesota beginning that fall. Because of McCormick's …