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April 17, 2008

Very Interesting Piece

Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to the Judicial Method, by Columbia student Jordan Wilder Connors, published at 108 Colum. L. Rev. 681 (2008). It will soon (they say!) be here. The abstract is tantalizing and relates broadly to Brian's piece, below, and the implied cause of action issue discussed below, too:

The Supreme Court has explained that stare decisis binds the Court to both its result and “those portions of the opinion necessary to [the] result.” Yet the Supreme Court does not seem to extend this principle to those “necessary portions,” herein called subdecisions, that involve methodological questions. For example, when a case rests on a subdecision about whether a Court should consult legislative history in interpreting a statute, the effect of that opinion on future cases is unclear. This Note focuses on stare decisis with respect to subdecisions about statutory interpretation to shed light on the broader issue of the scope of stare decisis. After describing the purpose and operation of stare decisis, this Note examines statutory interpretation subdecisions to determine whether the court gives them precedential effect. It finds that the Court applies stare decisis to some statutory interpretation subdecisions but not others, with no coherent principle explaining the inconsistency. Finally, this Note uses the purposes of stare decisis to argue that the Court should apply it to all statutory interpretation subdecisions.

On my list.

April 17, 2008 in Current Affairs | Permalink


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