Redundant Reliance and The Supreme Court\u27s Application of Stare Decisis

When the Supreme Court invokes the doctrine of stare decisis in their opinions, they are appealing to the fundamental principle that precedents have authority by virtue of being a precedent. However, they also recognize other concerns that come with the decision to defer to precedents or to overturn them. In pursuit of maintaining the rule of law, the Court uses various legal tests to guide them through sometimes competing concerns of precedential authority, including what is called reliance interests: the consideration of whether the precedent has engendered a reliance to the said precedent, to the extent that overturning it would cause significant harm. Because reliance interests are the basis for consequential Supreme Court decisions regarding fundamental constitutional rights, it is important to have a clear understanding of why it is used, how it is used, and whether it should be used in the judicial process. These are the questions I aim to answer in this thesis. Ultimately, I find that reliance interest considerations are redundant as part of stare decisis deliberations, and I further argue that because of its potential to be harmful, that redundancy may not justify its use. For the Court’s application of stare decisis to be more robust, a solution other than reliance interests may be needed

An Appreciation of Marc Galanter’s Scholarship

Lande highlights three of Marc Galanter\u27s works to illustrate qualities that seem especially worth emulating. He includes extended excerpts of his writing because his concepts and language are so evoctive that paraphrasing often does not do them justice. Galanter\u27s works that Lande focuses, include the classic articles, Why the Haves Come Out Ahead: Speculations on the Limits of Legal Change ; and Case Congregations and Their Careers . The professor\u27s recent book, Lowering the Bar: Lawyer Jokes and Legal Culture, is also featured. The book is the culmination of much of his work on American law

The Foreign Source Doctrine: Explaining the Role of Foreign and International Law in Interpreting the Constitution

This article brings much-needed precision to the debate over the Supreme Court\u27s use of foreign and international law to interpret the Constitution. The debate has been both imprecise, ignoring the subtleties of the phenomenon at issue, and prematurely abstract, jumping to theoretical and ideological levels without first looking to establish the specifics. By focusing on the particular areas of constitutional text subjected to foreign sources and the longstanding lines of caselaw upon which the use of foreign sources builds, this article reveals that a doctrine has crystallized around the use of foreign sources. The doctrine specifies the precise uses to be made of foreign sources and the amount of authority to be bestowed upon them, and, consequently, provides a foundation upon which sensible theoretical and ideological inquiries could be based. In sum, this article tells a story that needs to be heard, exposes the constitutional traditions underlying what is commonly but wrongly treated as a practice of activist judges, and sets the stage for productive social discourse on an important constitutional practice

Illuminating Justice Marshall\u27s Death Penalty Jurisprudence Via the Prism of Dynamic Constitutionalism

Justice Thurgood Marshall: Exploring the Life and Legacy of One of America\u27s Most Celebrated Jurist

The Shifting Origins of International Law

Both state-centrism and Euro-centrism are under challenge in international law today and this double challenge, this work argues, is being fruitfully mirrored back into the study of the history of international law. It examines, in the first section, the effects of the rise of positivism as a method of norm-identification and the role of methodological nationalism over the study of the history of international law in the modern foundational period of international law. This is extended by an examination of how this bequeathed a double exclusionary bias regarding time and space to the study of the history of international law as well as a reiterative focus on a series of canonical events and authors to the exclusion of others such as those related to the Islamic history of international law. In the second section, the analysis turns to address why this state of historiographical affairs is changing, specifically highlighting intra-disciplinary developments within the field of the history of international law and the effects that the “international turn in the writing of history” is having on the writing of a new history of international law for a global age. The conclusion reflects on some of the tasks ahead by providing a series of historiographical signposts for the history of international law as a field of new research