The Power of PrecedentOxford University Press, 12 Feb 2008 - 352 halaman The role that precedent plays in constitutional decision making is a perennially divisive subject among scholars of law and American politics. The debate rages over both empirical and normative aspects of the issue: To what extent are the Supreme Court, Congress, and the executive branch constrained by precedent? To what extent should they be? Taking up a topic long overdue for comprehensive treatment, Michael Gerhardt connects the vast social science data and legal scholarship to provide the most wide-ranging assessment of precedent in several decades. Updated to reflect recent legal cases, The Power of Precedent clearly outlines the major issues in the continuing debates on the significance of precedent and evenly considers all sides. For the Supreme Court, precedents take many forms, including not only the Court's past opinions, but also norms, historical practices, and traditions that the justices have deliberately chosen to follow. In these forms, precedent exerts more force than is commonly acknowledged. This force is encapsulated in the implementation and recognition of what Gerhardt calls the "golden rule of precedent," a major dynamic in constitutional law. The rule calls upon justices and other public authorities to recognize that since they expect others to respect their own precedents, they must provide the same respect to others' precedents. Gerhardt's extensive exploration of precedent leads him to formulate a more expansive definition of it, one that encompasses not only the prior constitutional decisions of courts but also the constitutional judgments of other public authorities. Gerhardt concludes his study by looking at what the future holds for the concept, as he examines the decisions and attitudes toward precedent exhibited by the shift from the Rehnquist to the Roberts Court. Authoritative and incisive, Gerhardt presents an in-depth look at this central yet understudied phenomenon at the core of all constitutional conflicts and one of undeniable importance to American law and politics. Ultimately, The Power of Precedent vividly illustrates how constitutional law is made and evolves both in and outside of the courts. |
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... subject to a double interpretation. There is scarcely any part of my conduct ... Court must not, therefore, be permitted to control the Congress or the ... matter will remain part and parcel of our legal system for years to come, damaging ...
... subject to a double interpretation. There is scarcely any part of my conduct ... Court must not, therefore, be permitted to control the Congress or the ... matter will remain part and parcel of our legal system for years to come, damaging ...
Halaman 10
Michael J. Gerhardt. cases are the instances in which the Court declared in so many words that it was overruling constitutional precedents. (Table A- in the Appendix lists these cases, including their subject matters and the cases ...
Michael J. Gerhardt. cases are the instances in which the Court declared in so many words that it was overruling constitutional precedents. (Table A- in the Appendix lists these cases, including their subject matters and the cases ...
Halaman 19
... Court owes relatively little deference to its constitutional decisions: Stare decisis is usually the wise policy, because in most matters ... trial and error, so ... subject.”30 In the s the Warren Court's unusually large number of ...
... Court owes relatively little deference to its constitutional decisions: Stare decisis is usually the wise policy, because in most matters ... trial and error, so ... subject.”30 In the s the Warren Court's unusually large number of ...
Halaman 28
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Isi
3 | |
9 | |
2 Theories of Precedent | 47 |
3 The Golden Rule | 79 |
4 Nonjudicial Precedent | 111 |
5 The Multiple Functions of Precedent | 147 |
6 Super Precedent | 177 |
The Future of Precedent | 199 |
Appendix | 205 |
Notes | 255 |
Index | 325 |
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Alito arguing attitudinalists Burger Bush citation omitted cited commerce clause common law common-law concurring Confirmation Hearing congressional constitutional adjudication constitutional decisions constitutional law constitutional precedents constitutionality Court’s Court’s decisions Date Case Overruled deci decided dissenting doctrine due process edent Eleventh Amendment equal protection establishment clause federal Harv immunity impeachment instance institutions issue judges judgments judicial decisions judicial precedents judicial review jurisdiction Justice Scalia legal scholars legislative majority Miranda Moreover network effects nomination nonjudicial authorities nonjudicial precedents normative O’Connor opinions overturning path dependency political practice prec President presidential Press prior question rational choice theorists reasons recognized Rehnquist Court rejected Republican requires rule Samuel Alito Segal Seminole Tribe Senate significance social Spaeth stare decisis statement statute Subject Matter Court super precedent supra note Supreme Court theory Thomas tion tional U.S. Const United Univ upholding view of precedent violated Warren weak view