(Download) "Mostly Unconstitutional: The Case Against Precedent Revisited." by Ave Maria Law Review ~ eBook PDF Kindle ePub Free
eBook details
- Title: Mostly Unconstitutional: The Case Against Precedent Revisited.
- Author : Ave Maria Law Review
- Release Date : January 01, 2007
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 284 KB
Description
In the American legal system, it is commonplace for actors to give varying degrees of legal weight to the decisions of prior actors. The generic name for this pervasive and familiar practice is the doctrine of precedent. (1) Although all legal actors must consider the extent to which they ought to follow the prior decisions of others, (2) the concept of precedent is associated most closely with the decision-making processes of judges. A court facing a legal problem must consider the weight, if any, that it will give to, inter alia, (1) prior executive or legislative decisions, (3) (2) decisions by courts situated above the deciding court in the judicial hierarchy (vertical precedent), (4) (3) decisions by courts situated at the same level as the deciding court in the judicial hierarchy (horizontal precedent), (5) and (4) decisions by courts or legal actors from foreign legal systems. (6) The consensus view in the modern American legal culture is that some form of precedent is "part of our understanding of what law is." (7) In this short Article, I want to (re)examine one specific but important aspect of the doctrine of precedent: the weight that the Constitution requires or permits the United States Supreme Court to give to prior United States Supreme Court decisions in constitutional cases. Thus, I am putting aside for now all questions of vertical precedent, all issues of horizontal precedent at the district court and court of appeals levels (and across departments within the national government), all issues of precedent in cases involving statutory interpretation, and all problems unique to common law cases. The question remaining after these other issues are tabled is, how much weight is the Supreme Court obliged or permitted to give to its own prior interpretations of the Constitution? (8) Conventional wisdom, in keeping with the view that precedent is an essential part of our understanding of law itself, holds that the Court is permitted, though not necessarily obliged, to give considerable, though not necessarily conclusive, weight to its prior decisions. The standard formulation is that the Court should not reject prior decisions, even when a current majority believes them on balance to be mistaken, without some "special justification" (9) beyond the mere belief of error. (10)