Law Commons^™

The Scope Of Precedent, Randy J. Kozel

Journal Articles

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not depend on the superficial …

Judicial Mindfulness, Evan R. Seamone

Journal Articles

Like all human beings, judges are influenced by personal routines and behaviors that have become second nature to them or have somehow dropped below the radar of their conscious control. Professor Ellen Langer and others have labeled this general state "mindlessness." They have distinguished "mindful" thinking as a process that all people can employ to gain awareness of subconscious influences, and thus increase the validity of their decisions. In this Article, I establish a theory of "judicial mindfulness" that would guard against two types of "cold" bias when interpreting legal materials. The first harmful bias involves traumatic past events that …

Process Of Constitutional Decision Making, Kenneth F. Ripple

Journal Articles

Over the past decade, our profession has engaged in an intense debate over the proper role of judges in the interpretation of our Constitution. This is not, of course, a new controversy. It has been with us ever since Chief Justice Marshall's decision in Marbury v. Madison.' However, during this last decade, the debate has taken on new dimensions. There is a new range and depth to the inquiry. What began as a discussion largely among members of the academic bar and some members of the judiciary has become a national political issue. Yet the basic question remains: In a …