• Stare Decisis: Precedent vs the Constitution
    Articles,  Blog

    Stare Decisis: Precedent vs the Constitution

    Precedent does not trump the constitution, even when the court says it does. Stare decisis is Latin for “to stand by things decided.” In short, it is the doctrine of precedent. According to the Supreme Court, stare decisis “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” In practice, it is the judicial policy of sometimes adhering to a prior decision even when it was wrong. As the majority put it in the 1992 case of Planned Parenthood vs Casey, it is the practice of adhering to a prior decision “whether or…

  • 6 Legislation and judge made law
    Articles,  Blog

    6 Legislation and judge made law

    Well there’s a difficult issue here that I’ll just touch upon because I hope this helps you make the distinction between two types of law. The parliament makes legislation an Act of Parliament, a statute, which governs law. The Crimes Act, the Mental Impairment Act, Sexual Offences Act, numerous statutes made by Parliament. That’s the overriding law, parliamentary-made law, made by Parliament, who are of course elected persons. Statutes, legislation are expressed in general terms. They’re general prospective legislation terms. You can’t legislate for an individual case which hasn’t occurred You can’t anticipate all the details which might occur, so legislation is general, expressed generally, and it’s prospective. It’s an…

  • The Code of Hammurabi & the Rule of Law: Why Written Law Matters [No. 86]
    Articles,  Blog

    The Code of Hammurabi & the Rule of Law: Why Written Law Matters [No. 86]

    The Code of Hammurabi tells us an immense amount about Babylonian society. Much of what we have is contract law. Much of what we have is liability law. We have a lot of family law having to do with divorces, custody of children, and so forth. There’s a certain amount of criminal law that survives in it, and there are even laws about the responsibility of public officials. So it gives you a picture of the details of common life on a scale that exceeds what we know about, say, ancient Athens in the fifth century B.C. There are 282 laws in what survives of this diorite stela, they call…

  • The Code of Hammurabi & the Rule of Law: Why Written Law Matters [No. 86]
    Articles,  Blog

    The Code of Hammurabi & the Rule of Law: Why Written Law Matters [No. 86]

    The Code of Hammurabi tells us an immense amount about Babylonian society. Much of what we have is contract law. Much of what we have is liability law. We have a lot of family law having to do with divorces, custody of children, and so forth. There’s a certain amount of criminal law that survives in it, and there are even laws about the responsibility of public officials. So it gives you a picture of the details of common life on a scale that exceeds what we know about, say, ancient Athens in the fifth century B.C. There are 282 laws in what survives of this diorite stela, they call…

  • Stare Decisis: Overturning Supreme Court Precedents [No. 86]
    Articles,  Blog

    Stare Decisis: Overturning Supreme Court Precedents [No. 86]

    The Supreme Court overturns its precedents rather less often than is thought, and that’s been especially true of the Roberts Court, although, in the last term, the Court overturned three of its precedents, which was quite rare for that Court. It did so in the Janus v. AFSCME case when it overturned the Abood Decision. It did so in the Wayfair case, which involved the taxation of internet sales by out-of-state vendors, which overturned the Quill case, and it did so implicitly at least in Trump v. Hawaii, in which the court found that the infamous Korematsu case was no longer good law. But again, this is an exception where…

  • Articles

    The Code of Hammurabi & the Rule of Law: Why Written Law Matters [No. 86]

    The Code of Hammurabi tells us an immense amount about Babylonian society. Much of what we have is contract law. Much of what we have is liability law. We have a lot of family law having to do with divorces, custody of children, and so forth. There’s a certain amount of criminal law that survives in it, and there are even laws about the responsibility of public officials. So it gives you a picture of the details of common life on a scale that exceeds what we know about, say, ancient Athens in the fifth century B.C. There are 282 laws in what survives of this diorite stela, they call…

  • Articles

    The Code of Hammurabi & the Rule of Law: Why Written Law Matters [No. 86]

    The Code of Hammurabi tells us an immense amount about Babylonian society. Much of what we have is contract law. Much of what we have is liability law. We have a lot of family law having to do with divorces, custody of children, and so forth. There’s a certain amount of criminal law that survives in it, and there are even laws about the responsibility of public officials. So it gives you a picture of the details of common life on a scale that exceeds what we know about, say, ancient Athens in the fifth century B.C. There are 282 laws in what survives of this diorite stela, they call…

  • When Should the Originalist Respect Precedent? [No. 86]
    Articles,  Blog

    When Should the Originalist Respect Precedent? [No. 86]

    Precedent poses an enormous practical issue for originalism. The reason is that the supreme court reporters are full of precedents that may well not be consistent with originalism. So one rule would be this, that we should not revisit a precedent when there’s substantial evidence that had the supreme court had not decided that precedent, we’d have a constitutional amendment to implement it. That’s sort of the simplest rule. Let’s take a famous case called the Legal Tender Cases. The question in the 1870s was whether or not the federal government could print bills because the constitution says the federal government can coin money. It doesn’t actually give by its…