Open Access. Powered by Scholars. Published by Universities.®
- Discipline
Articles 1 - 2 of 2
Full-Text Articles in Law
Judicial Opinions As Binding Law And As Explanations For Judgments, Thomas W. Merrill
Judicial Opinions As Binding Law And As Explanations For Judgments, Thomas W. Merrill
Faculty Scholarship
To what extent does the executive branch have autonomous powers of legal interpretation? The issue is often broadly framed in terms of two disparate understandings of the allocation of interpretative power: "judicial supremacy" and "departmentalism." In this paper, I shall speak of two different understandings of judicial opinions: the idea that judicial opinions (or at least the "holdings" of opinions) are legally binding on actors in the executive branch, and the idea that opinions are, from the perspective of executive actors, merely explanations for judicial judgments. I adopt this locution because it focuses more precisely on the core of the …
Constitutional Identity, George P. Fletcher
Constitutional Identity, George P. Fletcher
Faculty Scholarship
The aim of this Article is to introduce and clarify a new way of thinking about decisions in close cases, particularly those that address basic issues of constitutional law. When constitutional language fails to offer an unequivocal directive for decision, the recourse of the judge is not always to look "outward" toward overarching principles of political morality. In an illuminating array of cases, the acceptable way to resolve the disputes and to explain the results is to turn "inward" and reflect upon the legal culture in which the dispute is embedded. The way to understand this subcategory of decisions is …