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Chevron U.S.A. Inc. v. National Resources Defense Council, Inc., the foundation for much of contemporary administrative law, is under siege. Several members of the Supreme Court have suggested that they would like to overrule it. Under standard principles of stare decisis, doing that would be a serious mistake. Even if Chevron was wrongly decided, overruling it would create an upheaval-a large shock to the legal system, producing a great deal of confusion, more conflicts in the courts of appeals, and far greater politicization of administrative law. For example: What would happen to the countless regulations that have been upheld under the Chevron framework? Would they be newly vulnerable? More fundamentally, a predictable effect of overruling Chevron would be to ensure a far greater role for judicial policy preferences in statutory interpretation and far more common splits, within lower courts, along ideological lines. There is also the question of reliance interests: For decades, Congress has legistated against the background set by Chevron, and the resulting statutes rejlect an understanding that the Court's framework will apply. Though the argument for overruling Chevron is unconvincing, its critics have legitimate concerns. Those concerns should be addressed by (1) insisting on a fully independent judicial role in deciding whether a statute is ambiguous at Step One; (2) invalidating arbitrary or unreasonable agency interpretations at Step Two; and (3) deploying canons of construction, including those that are designed to serve nondelegation functions and thus to cabin executive authority. The result would not quite be Zombie Chevron, but it would be close to that, and the most reasonable path forward. [ABSTRACT FROM AUTHOR]

The article discusses the topics of judicial deference to agency interpretation of regulations and statutes and doctrinal clarity by examining the U.S. Supreme Court's rulings in Kisor v. Wilkie and Chevron USA Inc. v. Natural Resource Defense Council, Inc. Other topics include the stare decisis doctrine, and the opinion of Professor Cass R. Sunstein on the cases.

The article explores the doctrine of stare decisis by reviewing the Supreme Court's recent decision in Gamble v. United States and theory of stare decisis for questions of state constitutional and statutory interpretation and common-law capacities.

This article presents moral jurisprudence theory as a systematic approach to business ethics that analogizes core problems of the field to related problems in law. Adapting theoretical approaches from contemporary philosophy of law, the article develops a decision-making method for business ethics. [ABSTRACT FROM AUTHOR]

The article discusses the need to restore the stare decisis doctrine to reestablish the public's trust to the U.S. Supreme Court following the 2018 majority ruling in the case Janus v. AFSCME, Council 31. Topics include the doctrine's importance in stabilizing and legitimizing settled law, the factors used by the courts in using the doctrine like soundness of reasoning and application in modern times, and the suspicion that the court is manipulating the doctrine to achieve a political agenda.

This Article examines three facets of the relationship between statutory interpretation and the law of stare decisis: judicial interpretation, administrative interpretation, and interpretive methodology. In analyzing these issues, I emphasize the role of stare decisis in pursuing balance between past and present. That role admits of no distinction between statutory and constitutional decisions, calling into question the practice of giving elevated deference to judicial interpretations of statutes. The pursuit of balance also suggests that one Supreme Court cannot bind future Justices to a wide-ranging interpretive methodology. As for rules requiring deference to administrative interpretations of statutes and regulations, they are articulated at high levels of generality, cut across numerous contexts, and dictate the inferences that future Justices must draw from congressional and administrative ambiguity. Taken in combination, these factors give rise to a strong argument that administrative-deference regimes like the Chevron and Auer doctrines fall outside the bounds of stare decisis. [ABSTRACT FROM AUTHOR]

The recent fashion in the Canadian law of judicial review is to apply the reasonableness standard of review to virtually any decision rendered by an administrative decision-maker. Reasonableness review is a deferential standard of review that requires a court to ensure that the administrative decision falls within a range of reasonable outcomes that are defensible in light of the facts and law. When reasonableness review is applied to questions of law, the Supreme Court has occasionally ruled that the question admits of only one reasonable interpretation and has affirmed or quashed an administrative decision on that basis. This article addresses the difficult question of whether a judicial decision affirming that a provision admits of only one reasonable interpretation is strictly binding on an administrative decision-maker interpreting that provision in the future. If reasonableness review is premised on deference, then deference ought to apply to an administrative decision-maker's interpretation of that question in the future, even if it differs from the court's interpretation. After situating this issue within the principled foundation of the Canadian law of judicial review, this article explores possible solutions to this problem, attempting to balance the need to protect the rule of law against the rationale for deference to administrative interpretations of law in the first place. It ultimately concludes by suggesting that, should Canadian courts continue to apply reasonableness review to virtually all questions of law, a uniquely administrative law approach to stare decisis will need to be developed in order to maintain a coherent and principled system of judicial review. [ABSTRACT FROM AUTHOR]

This paper examines the common justifications for the practice of following precedent or past judicial decisions in the adjudication of present disputes and options for following the precedent or stare decisis without committing to any single method.

This Article seeks to shed light on a little-noticed trend in recent U.S. Supreme Court statutory interpretation cases: The Court's textualist Justices--or at least some subset of them--have proved remarkably willing to abandon stare decisis and to argue in favor of overruling established statutory interpretation precedents. This is especially curious given that statutory precedents are supposed to be sacrosanct; Congress, rather than the Court, is the preferred vehicle for correcting any errors in the judicial construction of a statute and courts are to overrule such constructions only in rare, compelling circumstances. What, then, accounts for the textualist Justices' brazen willingness to overrule statutory precedents in recent years? And how can this practice be reconciled with textualism's core aims of promoting clarity and stability in the law? This Article advances a threefold thesis. First, it argues that the textualist Justices view precedents that create a test for implementing a statute (e.g., the "motivating factor" test for Title VII violations) as different from ordinary text-parsing statutory interpretation (e.g., "labor" means "manual labor"). More specifically, textualist jurists regard what I call "implementation test" precedents as akin to common law decision-making, rather than statutory interpretation--and seem to have created a de facto "implementation test exception" to the heightened stare decisis protection normally afforded statutory precedents. Second, the Article links textualist Justices' proclivity to overrule to an oft-unspoken predicate assumption of textualism--i.e., that there is a singular "correct answer" to every question of statutory interpretation. This assumption may make it especially difficult for textualist jurists to accept the idea that an incorrect statutory interpretation should be left in place simply because it was first in time. Last, the Article notes that some textualist jurists see themselves as "revolutionaries," whose function is to overthrow the old, corrupt jurisprudential order--including outmoded precedents reached through the use of illegitimate, atextual interpretive resources. Ultimately, the Article both supports and critiques textualist Justices' approach to statutory precedents. On the one hand, it argues that a relaxed form of stare decisis for implementation test precedents makes sense for many reasons, as long as special deference is given to implementation tests that Congress has expressly endorsed. At the same time, it rejects textualists' attempts to overrule non-implementation test precedents based on simple disagreement with the original interpretation. [ABSTRACT FROM AUTHOR]

The article focuses on the history of workability as a consideration of stare decisis and describe how the workability factor has changed in recent decades in the U.S. It informs on the U.S. Supreme Court case Schumacher v. City of Roswell addressing preservative use of workability; statutory interpretation of workability; and infringement of separation of powers by workability.

The article provides practical advice on the use of precedent in written legal documents and compositions, and it mentions cognitive science and the author's claim that case-based legal analogies can be a persuasive tool for attorneys who are drafting legal arguments and briefs. A stare decisis legal doctrine in America is addressed, along with legal reasoning and metaphors. The efforts to teach judges and lawyers to process analogies are examined, along with legal decision making.

The article discusses the author's experiences in using a list of American statutory construction principles that he received while working at his first job after graduating from law school, and it mentions various legal canons involving legislative history, the stare decision doctrine, and workers' compensation statutes in the U.S. Idaho judge-made law (case law) is addressed, along with information about American statutory modifications, criminal statutes, and legislative intent.

In the absence of incontrovertible performance data in support of, or opposition to, school vouchers, court decisions on their legality become increasingly important. Analysis of legal challenges provides a rich opportunity for scholars and policymakers to follow arguments for or against their positions. We present a chronicle of the litigation history of the Douglas County, Colorado Choice Scholarship Program; a voucher program incorporating religious-based “public school partners” in which voucher recipients may enroll. We take particular notice of the differences in the way identical fact bases are interpreted by successive jurists. At this writing, the Choice Scholarship Program has been permanently enjoined from operating but further appeal to the U.S. Supreme Court would surprise no one. [ABSTRACT FROM PUBLISHER]

This paper presents the results of an investigation which objective was to determinate and analyze the cases of the legal action taken for protecting the rights of the prison population, about transgressions of their rights, based on the ignorance of the human dignity. At first, we expose a short research about the concept of dignity. Straightaway we are going to describe the present situation of the Colombian penitentiary system, present situation that implies the presentation of protection solicitudes that we analyze from the judicial decisions adopted by the Constitutional Court of Colombia (1992-2012). After the analysis, we present our conclusions that show that the constitutional jurisprudence has developed a solid argumentative process, but until the date, it has not been possible to materialize the judicial mandates. [ABSTRACT FROM AUTHOR]

The article discusses interpretive uniformity and methodological stare decisis in the U.S. judicial system, as of December 2015. Topics discussed include ways in which canons are communicated through the judicial system; the U.S. Supreme Court's approach to invent a new canon or to revert an old one; the interpretive canons and doctrines, including linguistic canons such as ejusdem generis; and the U.S. Supreme Court's decision in the case Chevron.

If judges disagree about the proper interpretation of the law, can they find common ground in the treatment of precedent? The doctrine of stare decisis weighs the value of legal continuity against the value of legal accuracy. But that analysis is complicated by pervasive disputes over the implications of legal error. Likewise, the scope of a precedent's impact in future cases depends on underlying assumptions about the ends and means of legal interpretation. When those assumptions vary among judges, so too will applications of stare decisis. For stare decisis to promote the continuity and impersonality of law, it requires an analytical framework designed not for an idealized world of interpretive consensus, but rather for a second-best world of interpretive pluralism. Second-best stare decisis emphasizes doctrinal factors whose content does not depend on adherence to any particular interpretive methodology. The second-best approach also contemplates structural solutions, such as supermajority voting requirements, for promoting collaboration across methodological lines. Finally, second-best stare decisis pursues compromises that emphasize the common ground among competing schools of interpretation. The result is a reconceptualized doctrine of stare decisis that seeks to transcend interpretive disputes and underscore a court's status as a unified institution working across time--an institution that is something different, and something greater, than its individual members. [ABSTRACT FROM AUTHOR]

The author discusses the legitimacy of the doctrine of stare decisis and secret law in binding precedent and reliable publication of court opinions in the Foreign Intelligence Surveillance under the provisions of the Foreign Intelligence Surveillance Act (FISA). It informs that the U.S. Senate Bill 1467 focuses on the role of FISA courts to issue opinions containing the significant construction or interpretation of law.

The article focuses on the concept of methodological stare decisis in choice-of-law cases and intersystemic analysis of statutory interpretation in multistate cases. Topics discussed include choice-of-law theory and doctrine, guidance needed by courts in order to construe sister state statutes, and the ad hoc practices that damages the policies underlying choice-of-law doctrines and case Autonation Direct.com, Inc. v. Thomas A. Moorehead, Inc.

This Article criticizes a recent movement toward making statutory interpretation simpler and more uniform. The trend is reflected by proposals to adopt codified rules of statutory interpretation, give stare decisis effect to interpretive methodology, use simpler methods of statutory interpretation in lower courts, and implement certain versions of textualism. This Article explains that such proposals are driven by an overarching desire to limit judicial discretion and promote a formal vision of the rule of law; they assume that the traditional hierarchy of legal sources is exclusive, and that statutory interpretation's function is to ascertain the meaning of the law. This Article challenges each of these goals or assumptions by claiming, first, that instead of seeking to eliminate judicial discretion, the primary goal of statutory interpretation methodology should be to protect the people from the possibility of domination by the state. Second, the resolution of disputes regarding the permissible scope of governmental authority in difficult statutory cases requires the use of practical reasoning, and the quality of statutory law and its democratic legitimacy benefit from a broad range of arguments and diverse judicial perspectives. Third, the traditional hierarchy of legal sources is outdated, and "interpretive methodology" and "agency decision-making" should be viewed as distinct forms of law that merit their own special places in a new legal hierarchy for the regulatory state. Finally, the central function of statutory interpretation by federal courts in the modern regulatory state is to provide individuals and groups with opportunities to contest the validity of particular exercises of governmental authority, rather than to ascertain the meaning of the law in a vacuum. This Article therefore argues that the recent proposals to dumb down statutory interpretation are fundamentally misguided, and it closes by making several related observations about the extent to which interpretive methodology can or should be simple or uniform. In sum, provisional dialogues by and among different centers of power better reflect the nature of law in the modern regulatory state than artificial efforts to achieve simple, predictable, or uniform final answers to our most pressing legal or social problems. [ABSTRACT FROM AUTHOR]

The article discusses various domains of legality with the American administrative state, focusing on a case study of the U.S. Office of Information and Regulatory Affairs (OIRA), judicial review practices in America, and the analytical category known as "regleprudence" which is related to the jurisprudence and legisprudence doctrines. The Executive Branch of the U.S. federal government is mentioned, along with the stare decisis legal doctrine and substantive legal interpretation in America.

Analogical reasoning is a pervasive feature of the common law, yet its structure and rational force is much disputed by legal theorists, some of whom are sceptical that it has any rational force at all. This article argues that part of the explanation for these disagreements lies in there being not one form of analogical reasoning in the common law, but three: classificatory analogies, close analogies and distant analogies. These three differ in their functions and rationale. Classificatory analogies involve the use of decided cases to help characterize novel fact situations, and are justified by the rule of law ideal of minimizing the dependence of judicial decisions on the individual views of decision-makers. Close analogies are used to help resolve unsettled issues by reliance on decisions from other branches of the same legal doctrine. They complement the doctrine of precedent, and rest on similar considerations. Distant analogies are also used to help resolve unsettled issues, but by reference to decisions from other legal doctrines. They are the most susceptible to sceptical critique: although they can serve to maintain coherence in the law, they deserve a more modest role in legal reasoning than they are often given. [ABSTRACT FROM PUBLISHER]

Lawyers and judges speak to each other in a language of precedents--decisions from cases that have come before. The most persuasive precedent to cite, of course, is an on-point decision of the U.S. Supreme Court. But Supreme Court opinions are changing. They contain more factual claims about the world than ever before, and those claims are now rich with empirical data. This Supreme Court factfinding is also highly accessible; fast digital research leads directly to factual language in old cases that is perfect for arguments in new ones. An unacknowledged consequence of all this is the rise of what I call "factual precedents": the tendency of lower courts to cite Supreme Court cases as authorities on factual subjects, as evidence that the factual claims are indeed true. Rather than citing, for example, evidence from the record to establish that carpal tunnel syndrome regularly resolves without surgery, lower courts instead cite language from a Supreme Court opinion for that point. This Article carefully describes how lower courts are using Supreme Court facts today and then argues that these factual precedents are unwise. The Supreme Court is not a factfinding institution. Facts change over time. And, unlike legal precedents, one cannot be certain that factual statements from the Supreme Court are carefully deliberated and carry the force of law. I argue that Supreme Court statements of fact should not receive any authoritative force separate from the force that attaches to whatever legal conclusions they contributed to originally. If a fact is so central to the legal holding that the two meld together, then the Supreme Court is free to so state and thus insulate the factual conclusion from future challenges by making it part of the legal rule. But the presumption, I suggest, should be no precedential value for generalized factual claims--even if they are facts found in the U.S. Reports. [ABSTRACT FROM AUTHOR]

The article focuses on the Canadian court cases Bedford v. Canada and Carter v. Canada, which dealt with the doctrine of stare decisis. Topics include the difference between adjudicative and social facts, the impact of precedent on judicial decision making, and the courts' interpretation of the Canadian Charter of Human Rights.

The article discuses the role of stare decisis as an underlying paradigm in the first year of law school. It illustrates the falsity of the interpretations that role of lawyers is to analyze what courts have done in the past in order to take future decisions. It describes the increasing displacement of stare decisis as a controlling limitation in American law, most notably in administrative law and arbitration.It evaluates the value of the traditional judicial framework for legal instruction.

What was the effect of the publication of the precedents in the House in the late nineteenth century? Empirical analysis demonstrates a significant effect of the publication of the House precedents on the behavior of members' willingness to appeal decisions of the chair. Publication of the precedents reduced the frequency of appeals, a finding consistent with the qualitative arguments of past parliamentarians but never before demonstrated empirically. Further, parallel analysis of the Senate reveals that the publication effect found for the House is not an artifact of some secular trend in legislative behavior, doing so by showing that no similar pattern occurs in the Senate during the same period of time. [ABSTRACT FROM AUTHOR]

"[A] relative absence of skills in case analysis" is said to be "the Achilles heel of civil-law methods." This Article takes issue with this view and shows that the continental European tradition has its own ways of dealing with cases. Its techniques can appear different from the common law "case law method," but they are no less rational and intellectually sophisticated. The reason for the rather conceited attitude of some comparatists is in the dominance of the common law paradigm of precedent and the accompanying "case law method." If we want to understand how courts and lawyers in different jurisdictions use previous judicial decisions in their argument, we need to move beyond the concept of precedent to a wider notion, which would embrace practices and theories in legal systems outside the common law tradition. This Article presents the concept of "reasoning with previous decisions" as such an alternative and develops its basic models. The Article first points out several shortcomings inherent in limiting the inquiry into reasoning with previous decisions by the common law paradigm (I). On the basis of numerous examples provided in section (I), it will present two basic models of reasoning with previous decisions: case-bound and legislative (II). The following section seeks to explain why the common law paradigm has for so long dominated most debates on reasoning with previous decisions (III). Finally, a normative defence of the legislative model, based on the experience of the continental European tradition will be offered (IV). [ABSTRACT FROM AUTHOR]

The Constitution is often said to leave important questions unanswered. These include, for example, the existence of a congressional contempt power or an executive removal power, the role of stare decisis, and the scope of state sovereign immunity. Bereft of clear text, many scholars have sought answers to such questions in Founding-era history. But why should the historical answers be valid today, if they were never codified in the Constitution's text? This Article describes a category of legal rules that weren't adopted in the text, expressly or implicitly, but which nonetheless have continuing legal force under the written Constitution. These are constitutional "backdrops": rules of law that aren't derivable from the text, but are left unaltered by the text, and are in fact protected by the text from various kinds of legal change. These rules may have been incorporated by reference, they may have been insulated from change by the usual political actors, or they may have been preserved as "defeaters" for the Constitution's defeasible language. In each case, the text requires that the rules be given force, even though it doesn't supply their content. Backdrops are not only a legitimate category of legal rules, but a surprisingly important part of our legal system. Moreover, recognizing backdrops as a category may help shed light on otherwise insoluble disputes. [ABSTRACT FROM AUTHOR]

Stare decisis allows common law to develop gradually and incrementally. We show how judge-made law can steadily evolve and tend to increase efficiency even in the absence of new information. Judges' opinions must argue that their decisions are consistent with precedent: this is the more costly, the greater the innovation they are introducing. As a result, each judge effects a cautious marginal change in the law. Alternative models in which precedents are either strictly obeyed or totally discarded would instead predict abrupt large swings in legal rules. Thus, we find that the evolution of case law is grounded not in binary logic fixing judges' constraints, but in costly rhetoric shaping their incentives. We apply this finding to an assessment of the role of analogical reasoning in shaping the joint development of different areas of law. (JEL: K13, K40) [ABSTRACT FROM PUBLISHER]

The article presents a case study on the Delaware court case Air Products Chemicals Inc. v. Airgas Inc., which dealt with takeover bids in Delaware corporation law. Topics include judges' consideration of the rule of law, adherence to stare decisis, and strategic decision-making. Information is provided on shareholder rights and hostile takeover bids.