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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... precedent. Under such a view of the duties inherent in my arduous office, I could not but feel a diffidence in myself on the one hand, and an anxiety for the community. President George Washington (1789) P]ractic[e] has fixed ...
... precedent. Under such a view of the duties inherent in my arduous office, I could not but feel a diffidence in myself on the one hand, and an anxiety for the community. President George Washington (1789) P]ractic[e] has fixed ...
Halaman 4
... doctrine—its developed case law—on precedent. The second chapter moves beyond the Court to survey the two dominant outlooks within the legal academy on precedent. On the one hand, the weak view of precedent holds that precedent either ...
... doctrine—its developed case law—on precedent. The second chapter moves beyond the Court to survey the two dominant outlooks within the legal academy on precedent. On the one hand, the weak view of precedent holds that precedent either ...
Halaman 5
... view of precedent consider precedent as the principal if not the only meaningful source of constitutional meaning. But extensive social science data show precedents do not constrain justices from doing what they wish to do in ...
... view of precedent consider precedent as the principal if not the only meaningful source of constitutional meaning. But extensive social science data show precedents do not constrain justices from doing what they wish to do in ...
Halaman 8
... view of precedent. The limited path dependency of precedent that I describe is flatly inconsistent with a strong view of precedent. I further suggest that distinguishing, narrowing, and occasionally overruling precedent are acts which ...
... view of precedent. The limited path dependency of precedent that I describe is flatly inconsistent with a strong view of precedent. I further suggest that distinguishing, narrowing, and occasionally overruling precedent are acts which ...
Halaman 18
... precedent. First, we do not have unlimited judicial resources. If every ... precedent raises the stakes. The Justice who knows that each decision governs not ... view that change poses unknown risks, and that we generally should prefer ...
... precedent. First, we do not have unlimited judicial resources. If every ... precedent raises the stakes. The Justice who knows that each decision governs not ... view that change poses unknown risks, and that we generally should prefer ...
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