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A review of ROE V. DOBBS: THE PAST, PRESENT, AND FUTURE OF A CONSTITUTIONAL RIGHT TO ABORTION (Lee Bollinger & Geoffrey Stone eds. 2024) Dobbs v. Jackson Women's Health Organization [...]

This thesis explores the factors that influence the US Supreme Court’s decisions to overturn precedent. I argue that the Court is more likely to depart from precedent in cases relating to the right to privacy due to the dynamic nature of privacy rights and their inherent connection to rapidly evolving technology and societal values. As society grapples with digital surveillance, data collection, and personal freedoms, the question of how the Supreme Court navigates past precedents in the face of new realities becomes increasingly relevant. I find that privacy precedents are more likely to be altered than other subject matter. This research contributes to a deeper understanding of the common law system’s adaptability in the face of contemporary challenges by examining the Court’s decisions to overturn precedents based on subject matter.

Traditionally, administrative law cases don't make news. Instead, they make snooze. They can be exciting to a relatively small circle of 'ad. law nerds,' as we're affectionately called, but they're [...]

The article is devoted to the analysis of the validity of changes in the practice of the Grand Chamber of the Supreme Court, which should be considered as a deviation from previously formulated legal positions regarding the effective way of protecting the law, using the mutatis mutandis principle. It is emphasized that scientists have the right to carry out a critical analysis of judicial practice in the context of its compliance/non-compliance with the doctrine. A distinction was drawn between the right to interpret laws by the court and the exercise of discretionary powers, in which the degree of discretion is assessed as unreasonable and excessive; the use of used lecture structures is argued. Attention is focused on the inadmissibility of the practical implementation of individual, arbitrarily selected elements of the scientific debate into judicial practice, in particular, concerning the principle of stare decisis and the justification with its help of the right to judicial rule-making - in the form of a precedent that de facto already exists in practice and is recognized by theory, but, being called precedent, is not identical with classical English precedent. The analysis was carried out according to three vectors corresponding to different periods and appropriated standards of judicial practice. The first is a change in the position from “a mistake in choosing an effective method of defense as an independent reason for refusing a claim” to “a refusal to resolve a dispute due to the ineffectiveness of the method of defense chosen by the plaintiff can actually be considered as a limitation of the right to access to court.” The second is the introduction of a flexible approach to understanding the principle of dispositiveness and moving away from an overly formal assessment of the “proper claim”, which “cannot be considered by the courts as an improper method of protection”. The third already marks the conclusion “about the interpretation” of the claim, mutatis mutandis - for the purpose of full protection of the right in one process. The conclusion states that the interpretation (interpreting) of the claim contradicts the principle of dispositiveness, and its flexible interpretation in favor of such an interpretation will violate the right of the other party, who will not be able to predict the result of such an interpretation when constructing and proving its own position. Courts’ excessive fascination with innovations - with the usurpation of the right to rulemaking and departure from the doctrine - is unlikely to contribute to justice. This is indirectly indicated by frequent deviations from previous legal positions, which do not contribute to legal certainty. [ABSTRACT FROM AUTHOR]

The Supreme Court's 1947 incorporation of the Establishment Clause (1) through the Due Process Clause of the Fourteenth Amendment in Everson v. Board of Education of Ewing (2) continues to [...]

NOTE CONTENTS NOTE CONTENTS INTRODUCTION 2383 I. ABSURDITY IN CONTEXT 2390 A. Absurdity in History 2394 B. Absurdity in the Academic Literature and 2397 Judicial Discourse II. THREE CONCEPTIONS OF [...], Critiqued as a blank check for judicial intervention, the absurdity canon has been all but abandoned by modern textualists. But this Note argues that its total dismissal is unwarranted. By dissecting the multiple meanings of 'absurdity,' this Note reframes the absurdity canon as a form of constitutional avoidance. Properly understood, the absurdity canon enforces constitutional values of rationality embedded in the Equal Protection Clause. This conception should have broad appeal to both textualists and nontextualists alike, calibrating judicial deference with traditional rule-of-law values.

This article aims to address the problems that have arisen with respect to the binding nature of the recent jurisdictional plenary sessions of Peruvian labor justice issued by the Supreme Court, since it would be attempting to partially replicate the figure of stare decisis, whose Exegesis dates back to the so-called English common law, to our system, which has its roots in the Roman-Germanic system. [ABSTRACT FROM AUTHOR]

Статтю присвячено аналізу підставності змін у практиці Великої Палати Верховного Суду, яку слід розглядати як відступ від попередньо сформульованих правових позицій відносно ефективного способу захисту права, за допомогою принципу mutatis mutandis. Наголошено на наявності у науковців права здійснювати критичний аналіз судової практики в контексті її відповідності/не відповідності доктрині. Проведено розмежування між правом тлумачення судом законів й реалізацією дискреційних повноважень, у яких ступінь дискреції оцінюється як необґрунтований та надмірний; аргументовано застосування вживаних лекційних конструкцій. Акцентовано увагу на неприпустимості практичного втілення у судову практику окремих, довільно обраних елементів наукової дискусії, зокрема, що стосується принципу stare decisis й обґрунтуванні за його допомогою права на суддівську нормотворчість – у вигляді прецедента, що де-факто вже існує на практиці і визнається теорією, але, називаючись прецедентом, не є тотожним класичному англійському прецеденту. Аналіз проведено за трьома векторами, які відповідають різним періодам й відповідним їм стандартам судової практики. Перший – зміна позиції з «помилка в обранні ефективного способу захисту як самостійна підстава для відмови у позові» до «відмова у вирішенні спору через неефективність обраного позивачем способу захисту фактично може розглядатися як обмеження права на доступ до суду». Другий – запровадження гнучкого підходу до розуміння принципу диспозитивності й відходу від надмірно формальної оцінки «належної позовної вимоги», яка «не може бути розцінена судами як неналежний спосіб захисту». Третій вже знаменує висновок «про інтерпретацію» позовної вимоги, mutatis mutandis – з метою повного захисту права в одному процесі. У висновку зазначено, що тлумачення (інтерпретація) позовної вимоги суперечить принципу диспозитивності, а гнучке його тлумачення на користь такої інтерпретації порушуватиме право іншої сторони, яка не зможе передбачити результат такої інтерпретації при побудові й доведенні власної позиції. Надмірне захоплення судами нововведеннями – з, фактично, привласненням права на нормотворення й відходом від доктрини, навряд чи сприятиме правосуддю. На це похідним чином вказують нерідкі відступи від попередніх правових позицій, що не сприяє юридичній визначеності.

The attention of legal science to the issue of sources of law does not weak. Among such sources, judicial precedent, including all judicial practice, is consistently considered. The debate on the need to «legalize» the precedent in Russia, to transfer it from atypical sources of law to typical ones does not stop. Opposing views are expressed: the precedent is categorically rejected or, on the contrary, it is extolled. The purpose of the article is to conduct a comparative legal study of the understanding of judicial precedent in different states in the context of sources of law, rejecting in this regard stereotypes and illusions in the interpretation of judicial precedent as a source of criminal procedure law. Research methods: historical, comparative-legal, logical. Results: the conclusions are made that the ambiguity of the concept and use of judicial precedent requires a clear definition of its place in the system of sources of criminal procedure law. Judicial precedent should not be confused with judicial rules of common law countries as well as with judicial practice. The author maintains the position of preserving the meaning of the «classical» (English) precedent as a sour ce of law.

Much ink has been spilled on the Roberts Court's approach to stare decisis and precedent. Such commentary is hardly surprising. In just the last five years, the Court has overruled extant precedents on issues that range from abortion and jury convictions to property rights and public unions. It has also substantially narrowed and limited existing precedents, curbing the reach of earlier decisions in ways that disrupt and distort the jurisprudential landscape. Some view the Court's uneven approach to precedent as ideologically determined. As these critics maintain, the Court adheres to precedents that are consistent with the views of its six-member conservative supermajority while jettisoning or narrowing those precedents that do not accord with those ideological priors. This Essay takes a different tack. Specifically, it argues for reading the Roberts Court's approach to precedent and stare decisis through the lens of remedy. That is, the Court's treatment of precedent might be understood, whether in whole or in part, as animated by a desire to rectify an earlier error or injustice. To be sure, this impulse is not merely corrective--the Court's approach to stare decisis goes beyond correcting what it views as jurisprudential errors. Instead, the Court's approach seems marked by an interest in identifying and righting a past wrong. Recent cases like Dobbs v. Jackson Women's Health Organization, New York State Rifle & Pistol Association, Inc. v. Bruen, and Ramos v. Louisiana accord with this interpretive frame. In these cases, the Court departed from--or overruled--earlier decisions in part to remedy past racial injustices. Likewise, in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, the Court dismissed the extant precedent upholding the limited use of raceconscious admissions policies on the view that "[e]liminating racial discrimination means eliminating all of it.". Viewing the Roberts Court's approach to stare decisis through a remedial lens is clarifying. It helps us to understand--and better anticipate--the Court's treatment of earlier decisions. Understanding the Court's approach to stare decisis as a form of remedy renders more legible the Court's conception of legal injuries--and, in particular, racialized injuries. As this Essay explains, the Roberts Court's remedial approach to stare decisis is often deployed to correct what a majority of the Court views as a racial injustice. In some cases, like Ramos v. Louisiana, this remedial impulse focuses on correcting historic injustices wrought by white supremacy and historic acts of racism. But critically, a remedial lens may also render visible a reparative logic that unites a series of recent cases involving religious freedom, gun rights, and affirmative action. Although these cases focus on distinct doctrinal questions, they share a unifying impulse: the Court's apparent desire to remedy injuries done to Christian conservatives, workingclass whites, and, more generally, white people. In this regard, viewing the Court's decisions through a remedial lens may provide a more coherent account--across legal doctrines--of the Roberts Court's understanding of discrimination, the injuries it produces, and its apparent victims. [ABSTRACT FROM AUTHOR]

The Supreme Court afforded the Lanham Act extraterritorial reach over seventy years ago in Steele v. Bulova, but its recent extraterritoriality jurisprudence called that decision into question. This Article explains the history of trademark extraterritoriality and the splits that emerged among the circuit courts of appeals. It then canvases all of the Supreme Court’s recent decisions on the presumption against extraterritoriality and their effort to reinvigorate and standardize the law in that regard. We then provide a detailed exploration of the Supreme Court’s decision in Abitron Austria GmbH v. Hetronic Internnational, Inc. Next, we critique the decision and explore its implications not only for trademark law but also beyond. The Article demonstrates that Steele is effectively overruled, even if the Supreme Court failed to state as such. That means that circuit court case law developed over decades has been sent to the dustbin with nary a consideration of stare decisis. As a result, the previous tests that included considerations of the effects on U.S. commerce and the citizenship of the accused infringer are gone, left with a hopefully ambiguous “use in commerce” test. Additionally, under Steele, courts formally considered potential conflicts with foreign law when deciding whether to apply the Lanham Act extraterritorially. The role of comity is now uncertain, which is unfortunate in the context of intellectual property law. Consideration of foreign law would be useful in creating soft harmonization with foreign law while also surfacing potential disagreements among countries that could become the source of future negotiations. The Supreme Court also missed an opportunity to elaborate on the availability of damages for activities outside of the United States in the case of domestic intellectual property infringement. However, the case should nudge courts to adopt a narrow perspective on the availability of those damages. Finally, the review of the Supreme Court’s decisions on extraterritoriality demonstrates that its effort to formalize the test has been mixed at best. At times, the Court uses the presumption as it had done before its recent engagement: as a soft, secondary statutory canon. Additionally, the justices sharply disagree on step two of its extraterritoriality methodology, leaving lower courts in a state of uncertainty moving forward. [ABSTRACT FROM AUTHOR]

The article focuses on the complexities of disability benefit applications in the U.S. and the issue of res judicata in cases where claimants file multiple applications, proposing a solution for uniformity across circuits to ensure fair outcomes. It suggests that while certain findings should bind future applications, advocating for a nuanced approach within the Social Security Administration's authority and aligned with Supreme Court precedents.

On June 27, 2023, the United States Supreme Court in Mallory v. Norfolk Southern Railway Co. held that a Pennsylvania state court could legitimately assert personal jurisdiction over a nonresident corporation based on a consent statute that required out-of-state corporations to consent to personal jurisdiction as a condition for registering to do business in the state. The Court's plurality decision determined that the state's application of its statute to assert jurisdiction over Norfolk Southern Railway Co. did not violate the Due Process Clause of the Fourteenth Amendment. For a conservative Court, this was an unlikely victory for an injured plaintiff that was ironically based on robust adherence to stare decisis. The four fractured decisions in Mallory, in which all nine Justices joined in part, concurred, or dissented, represent the Court's disturbing trend to fail to articulate a coherent doctrine of personal jurisdiction. The Mallory plurality opinion conflates the muddled doctrine of consent jurisdiction, using it in support of an expansive consent theory of all-purpose general jurisdiction, which the Court has eschewed in recent cases. Moreover, the Court, which has taken to disregarding precedent in constitutional cases, nonetheless relied on a 1917 Pennsylvania precedent as authority for the plurality opinion upholding the Pennsylvania statute against Norfolk Southern Railway. The Mallory opinions further signal a curious return to state sovereignty theories of personal jurisdiction, sounding in Pennoyerera jurisprudence. Moreover, Justice Alito's concurring opinion encourages the introduction of a Dormant Commerce Clause argument into personal jurisdiction jurisprudence even though no one argued this to the Court. The dissent observes that the Mallory plurality opinion represents the beginnings of an attack on and rethinking of the Court's canonical International Shoe due process decision. This Article contends that the Court's personal jurisdiction jurisprudence is an incoherent muddle and that the Court is not improving this jurisprudence with each successive personal jurisdiction pronouncement. Collectively, Mallory is a bad decision based on a weak plurality decision. Due process advocates ought to take notice of Mallory's incipient assault on the Court's longstanding International Shoe doctrine and attempted resuscitation of Pennoyerera jurisdictional theories. Considering these concerns, the Article suggests that the Court should engage in a self-imposed moratorium on further personal jurisdiction pronouncements for the near future. [ABSTRACT FROM AUTHOR]

The article is devoted to the study of the institution of judicial precedent in the Romano-Germanic legal family. It is established that the countries of the Romano-Germanic legal family, unlike the countries of the Anglo-Saxon legal family under the influence of Roman law, in the context of codification of law, have determined for themselves the priority source of law - law, not precedent. However, there is a gradual increase in the role of judicial precedent in continental law countries due to a number of factors that contribute to the intensification of judicial rulemaking. First, in these countries, there are still branches of law that, for various reasons, either do not have legal regulation or are regulated only by general reference rules or framework provisions. For objective reasons, the legislator cannot foresee the entire variety of real-life phenomena. This pushes the courts to adopt legal provisions that can fill in the gaps in the legal regulation of social relations. Secondly, there is a noticeable lag between legislation and dynamically changing social relations, resulting in the formation of large segments of social life regulated by legal acts that have lost their relevance. The current realities, which are largely full of unpredictable events, highlight the need for legal systems to adapt. All of this contributes to the use of judicial precedents, which serve not only as a tool for resolving specific disputes, but also as a means of developing law, allowing to fill existing «gaps in law». In the Romano-Germanic legal family, the real legal force of a judicial precedent is determined not so much by its formal enshrinement in legal acts as by actual life circumstances. Real-life situations, as well as the practical necessity and demand for precedent as a source of law, play a key role in determining its true legal status and legal force. Judicial precedent in continental law countries is becoming increasingly important, becoming an integral element of dynamic and adaptive legal regulation over time, and the rules establishing the generally binding force of precedents and the discretionary powers of authorized bodies are increasingly common in both public and private law in these countries. Judicial precedent in these countries should be considered as a source of law from a practical point of view, focusing on solving problems arising in the process of law enforcement. [ABSTRACT FROM AUTHOR]

The doctrine of stare decisis is often explained in first-year law studies as synonymous with the doctrine of precedent and dichotomised into ratio decidendi and obiter dicta. This explanation of stare decisis is frequently supplemented by an exercise where the novice law student is provided with a case and directed to identify the ratio decidendi of the case, and to appreciate the distinction between ratio and obiter dicta in it, the latter being persuasive only. It is argued that this pedagogy is limited and unrealistic because stare decisis is a dynamic process whereby, applying the precepts of formal legal logic, legal principle evolves. This paper propounds that the fundamental precepts of formal legal logic should be harnessed as a dedicated pedagogy to teach students how principle evolves. The extant legal studies curriculum can readily be modified to accommodate these suggestions. Consistent with the proposition that stare decisis is ultimately a process, whether a statement in a case has the character of ratio decidendi or obiter dictum is itself determined as the outcome of that process. [ABSTRACT FROM AUTHOR]

One of the main moral costs of stare decisis lies in the continuous possibility of entrenching morally deficient decisions in the law. Although legal systems usually make provision for dealing with morally deficient precedents, there are cases in which the legal obligation of later courts to follow one of these precedents is undefeated. This possibility affects the overall justification of stare decisis. One traditional answer to this problem consists in accepting this moral cost, on the belief that the benefits of stare decisis outweigh it. On this view, when there is an undefeated legal obligation to follow a morally deficient precedent, the court must simply follow precedent. In this article, I question this approach and defend an alternative solution. I argue that, under some conditions, a court facing a morally deficient precedent should have the power to either follow the precedent or suspend its application to the parties by ordering a temporary stay of proceedings and referring the case to a higher court with power to overrule the precedent. This proposal entails exercising an equitable power recognised by the legal system, which I defend against three possible objections. [ABSTRACT FROM AUTHOR]

In this paper we carry out an exhaustive analysis, from a methodological point of view, of STC 145/2015, of June 25. In it, we find numerous flaws in the implementation of the constitutional legal method in terms of respect for the text of the constitution, the following of precedent, the interpretative rule of article 10.2, the use of analogy, weighting, etc. The methodological failures, when they are numerous or serious, result in the discredit and delegitimization of the TC as guarantor of the Constitution and fundamental rights. It is therefore necessary for this institution to adhere to a rigorous legal method in the exercise of its jurisdictional activity.

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Some recent work in legal theory argues that legal questions boil down to moral questions. On this view, lawyers and judges are ultimately interested in the moral effect of things done by legal institutions. This view has been called the 'new legal anti-positivism'. So far, it has not given a convincing account of precedent. That is, it has not explained how moral reasons can account for what judges do in practice when they follow past decisions. Any successful account must explain the central features of this practice: why lower courts follow higher courts, and not the other way around; the difference between ratio and obiter ; and the situations in which judges distinguish or overrule past decisions. This article gives a non-positivist account that meets this challenge, by giving a prominent place to the moral importance of roles. The account avoids some problems faced by existing non-positivist accounts of precedent. [ABSTRACT FROM AUTHOR]

The article explores the impact of political polarization on stare decisis in the context of judicial elections. It highlights challenges arising from elected judges expressing political views, using examples from recent Supreme Court decisions and state judicial elections in North Carolina, Wisconsin, and Ohio. It focuses on regulating stare decisis for elected judges to maintain judicial neutrality.

The role of stare decisis in constitutional law is a ubiquitous one. It shows up almost everywhere, leaving controversy and chaos in its wake. Yet despite the prominence of stare decisis, its jurisprudence remains perpetually unsettled. The Supreme Court identifies several factors that affect the strength of prior precedent. However, these factors are not consistently defined or even wholly agreed upon. How can something as crucial as the law of stare decisis have such scattered precedents? Something more, something deeper, is going on here. A hint of this deeper issue comes out in contentious cases like Payne v. Tennessee, Planned Parenthood v. Casey, and Dobbs v. Jackson Women's Health Organization, where the Justices speak to or acknowledge democratic disagreement and its effect on the Supreme Court's legitimacy. But to understand these cases as the Court simply confronting its own legitimacy, while partly correct, is much too narrow. A closer inspection of these opinions reveals more than just a simple debate about democratic disagreement. It is a debate about what role democratic disagreement should play in stare decisis and, therefore, in the Supreme Court as an institution. Thus, it is no wonder that stare decisis, as a doctrine, is unsettled. Stare decisis has become the battleground for America's oldest contest: departmentalism or judicial supremacy. This Note argues that stare decisis is much better understood when one analyzes the doctrine in connection with the broader discussions surrounding departmentalism and judicial supremacy. In doing so, this Note develops in three Parts. Part I examines the necessary background of stare decisis and its relationship to interbranch conflict. Part II surveys the three cases of Payne, Casey, and Dobbs, paying particular attention to how the Justices in these cases are, in truth, guided by their views of departmentalism or judicial supremacy. Part III further highlights the relationship between disputes over stare decisis and departmentalism versus judicial supremacy and provides the reader with a potential theoretical framework to explicitly incorporate the concept of departmentalism within precedent. Departmentalism and judicial supremacy will forever be negotiated. Ultimately, in stare decisis, a home has been found for this great American debate. [ABSTRACT FROM AUTHOR]