Jurisprudence Commons^™

Stare Decisis And Constitutional Adjudication, Henry Paul Monaghan

Faculty Scholarship

Despite endless literature urging that constitutional adjudication be severed from explorations into the understandings at the creation of the Constitution, original understanding continues to play a prominent role in the Supreme Court's jurisprudence. For the Court, originalism seemingly provides a legitimate ground for decisionmaking; for the people, it provides assurances against judicial usurpation of power properly belonging to other branches of government, or retained by the people themselves.

But difficulties with originalism emerge once the existing constitutional order is actually examined. The Supreme Court's repeated invocations of the Framers' understanding notwithstanding, a significant portion of our constitutional order cannot reasonably …

Cannibal Moves: An Essay On The Metamorphoses Of The Legal Distinction, Pierre Schlag

Publications

No abstract provided.

Government Nonacquiescence Case In Point: Social Security Litigation

Touro Law Review

No abstract provided.

Logic In The Law, Robert S. Summers

Cornell Law Faculty Publications

No abstract provided.

Embezzled Funds As Taxable Income: A Study In Judicial Footwork, Jerome B. Libin, George R. Haydon Jr.

Michigan Law Review

The James case might not be worthy of extensive comment if its only significance rested on the decision that embezzled funds constitute taxable income in the year of misappropriation. But close analysis of the five separate opinions that were written indicates that James may have considerable significance beyond its precise holding.

Wasserstrom: The Judicial Decision- Toward A Theory Of Legal Justification, William B. Harvey

Michigan Law Review

A Review of The Judicial Decision- Toward A Theory of Legal Justification By Richard A. Wasserstrom.

"Overruling" Opinions In The Supreme Court, Albert P. Blaustein, Andrew H. Field

Michigan Law Review

Despite its vaunted reputation for rectitude, the United States Supreme Court has been the first to deny its own judicial infallibility. For in at least ninety decisions, dating as far back as 1810 and as recent as its 1956 Term, the Supreme Court has made public confession of error by overruling its previous determinations.

This is a study of those ninety decisions-a statistical accounting of overruling cases and cases overruled, and a listing of the judges who agreed and disagreed with what was said and done. And this is a study of the "right to be wrong" -an inquiry into …

Justice Jackson And The Judicial Function, Paul A. Weidner

Michigan Law Review

Much of the pattern of division in the present Supreme Court is traceable to basic differences of opinion regarding the proper role of a judge in the process of constitutional adjudication. Some students of the Court, yielding to the current fashion of reducing even intricate problems to capsule terms, have tried to explain the controversy by classifying the justices as either "liberals" or "conservatives." A second school poses the disagreement largely in terms of judicial "activism" as opposed to judicial "restraint." It is this view that has the greater relevance for the present discussion. C.H. Pritchett, one of the leading …

Precedent In Past And Present Legal Systems, C. Sumner Lobingier

Michigan Law Review

The prevailing notion that stare decisis is peculiar to the Anglican Legal System is quite provincial and far from correct. On the contrary, the principle is inherent in every legal system, at least in its primitive stage; for the earliest form of law is custom, and the "core of custom" is precedent, not necessarily judicial, but something quite as authoritative.

The Machinery Of Procedural Reform, Edson R. Sunderland

Michigan Law Review

Much has been said and written about the imperfections of legal procedure. It is a subject of great interest and concern to the bar and to the public. Since rules of practice prescribe the conditions under which rules of law may be made operative, in so far as they fail of their purpose the law itself becomes ineffective. Lord Campbell is reported to have said that "The due distribution of justice depends more upon the rules by which suits are conducted than on the perfection of the code by which rights are defined."

Doctrine Of Stare Decisis, Edward B. Whitney

Michigan Law Review

I am requested to present a paper whose theme is suggested by the Present Problems of Private Law, as distinguished from law that has a constitutional or international aspect. I doubt whether there is any other section of the Congress whose themes are so difficult to select. We cover, indeed, those branches that mainly concern the ordinary, plain, steady-going, stay-at-home, law-abiding citizen,-that multitude of questions among which most legal practitioners everywhere are wearing out their lives; working every day and all day upon Present Problems of Private Law. Each of those problems interests the parties to the particular litigation or …