The Conflict Between Stare Decisis and Overruling in Constitutional Adjudication
Neither Supreme Court Justices, nor scholars who have written on the subject, take the view that the Constitution constrains the Court’s power to overrule its constitutional precedents. This essay argues that the Fifth Amendment’s Due Process Clause requires a constitutional law of overruling. Moreover, it proposes such a law on the basis of a conjunction of Marbury v. Madison, Martin v. Hunter’s Lessee, and Cohens v. Virginia, together with Article III’s “case or controversy” requirement. I suggest that the Court should ask whether a precedent in question significantly impairs the constitutionalized Rule of Law. If it does, stare decisis would lapse for the Court, which then could freely consider whether to overrule. I argue that this approach provides due process, is conceptually sound, and is normatively attractive in the constitutional context.
STARE DECISIS AND THE CONSTITUTION : AN ESSAY ON CONSTITUTIONAL METHODOLOGY
In this Essay, Professor Richard Fallon explains and defends the constitutional status of stare decisis. In part, Professor Fallon responds to a recent article by Professor Michael Stokes Paulsen, who argues that Supreme Court adherence to precedent is a mere "policy," not of constitutional stature, that Congress could abolish by statute. In particular, Paulsen argues that Congress could enact legislation denying precedental effect to Supreme Court decisions establishing abortion rights. In reply, Professor Fallon contends that Paulsen's argument depends on contradictory premises. If stare decisis lacked constitutional stature, then under Paulsen's methodological assumptions it also would be indefensible as a "policy," because a mere policy could not legitimately displace results that the Constitution otherwise would require. In defending the constitutional status of stare decisis, Professor Fallon develops arguments based on the text, structure, and history of the Constitution. But he emphasizes that the "legitimacy" of stare decisis is supported, partly independently, by its entrenched status and by the contribution that it makes to the justice and workability of the constitutional regime. More generally, Professor Fallon argues that constitutional legitimacy rests upon the relatively contestable bases of widespread acceptance and reasonable justice, and not upon "consent" to be governed by the written Constitution.
La inseguridad jurídica en normas de contratación estatal
It is established by different studies that the issue of government procurement has been marred by several factors, the test objective to publicize these factors, we take as starting point the constant conflict between the branches of government to try and organize this subject; will collect and analyze diverse regulatory and case material in order to achieve evidence and demonstrate the different concepts of constant change that produces excessive regulation of the subject procurement and is in turn causing rapid changes that result in legal uncertainty for our law on the Contract Status.