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Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron
Stare Decisis And The Rule Of Law: A Layered Approach, Jeremy Waldron
Michigan Law Review
Stare decisis remains a controversial feature of the legal systems that recognize it. Some jurists argue that the doctrine is at odds with the rule of law; others argue that there are good rule-of-law arguments in favor of stare decisis. This Article considers one possible good rule-of-law argument. It suggests that we should approach stare decisis in a layered way, looking at what the rule of law requires of the various judges involved in the development of a precedent. One rule-of-law principle, the principle of constancy, counsels against lightly overturning such precedents as there are. But that is not in …
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Is A Substantive, Non-Positivist United States Environmental Law Possible?, Dan Tarlock
Michigan Journal of Environmental & Administrative Law
U.S. environmental law is almost exclusively positive and procedural. The foundation is the pollution control and biodiversity conservation statutes enacted primarily between 1969–1980 and judicial decisions interpreting them. This law has created detailed processes for making decisions but has produced few substantive constraints on private and public decisions which impair the environment. Several substantive candidates have been proposed, such as the common law, a constitutional right to a healthy environment, the public trust, and the extension of rights to fauna and flora. However, these candidates have not produced the hoped for substantive law. Many argue that a substantive U.S. environmental …