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.
It's a Bird, It's a Plane, No, It's Super Precedent: A Response to Faber and Gerhardt
The normative case for originalism is based, in large measure, on the superiority of the enacted text over the opinions of members of the government whom it is supposed to govern and limit-including members of the Supreme Court. The author does not see how an originalist can accept that the Supreme Court could change the meaning of the text from what it meant as enacted and still remain an originalist. In other words, once it becomes appropriate for the Supreme Court to discard original meaning and the original meaning of the text is thereby reduced to a factor among many considerations by which the Constitution is "interpreted," the method being used is no longer originalism.
A Historical Introduction to the Law of Obligations
1 PROLOGUE: THE PREHISTORY OF THE ENGLISH LAW OF OBLIGATIONS 2 STRUCTURAL FOUNDATIONS 3 UNITY AND FRAGMENTATION OF THE MEDIAEVAL LAW OF CONTRACT 4 TRESPASS, TRESPASS ON THE CASE, AND THE MEDIAEVAL LAW OF TORT 5 THE SUBSTANTIVE LAW OF TORTS 6 THE SUBSTANTIVE LAW OF CONTRACT PART 2 THE TRIUMPH OF TRESPASS ON THE CASE 7 TORT, PROPERTY, AND REPUTATION: THE EXPANSION OF THE ACTION ON THE CASE 8 THE RISE OF THE ACTION OF ASSUMPSIT PART 3 THE MODERN LAW OF TORT AND CONTRACT 9 TRESPASS, CASE, AND THE MORAL BASIS OF LIABILITY 10 THE LAW OF TORTS IN THE NINETEENTH CENTURY: THE RISE OF THE TORT OF NEGLIGENCE 11 THE LAW OF TORTS IN THE TWENTIETH CENTURY: EXPANSION AND COLLAPSE OF THE TORT OF NEGLIGENCE 12 FOUNDATIONS OF THE MODERN LAW OF CONTRACT 13 THE RISE OF THE WILL THEORY THE WILL THEORY AND THE CLASSICAL MODEL OF CONTRACT 14 THE DECLINE OF THE WILL THEORY: LEGAL REGULATION AND CONTRACTUAL FAIRNESS PART 4 UNJUST ENRICHMENT 15 UNJUST ENRICHMENT 16 LEGAL CHANGE AND LEGAL CONTINUITY