scholarly journals Janus-Faced Judging: How the Supreme Court is Radically Weakening Stare Decisis

2020 ◽  
Author(s):  
Michael Gentithes
Keyword(s):  
Supreme Court ◽  
Stare Decisis ◽  
The Supreme Court

6. The Doctrine of Judicial Precedent

2019 ◽  
pp. 160-195
Author(s):  
James Holland ◽  
Julian Webb
Keyword(s):  
Human Rights ◽  
Supreme Court ◽  
Case Law ◽  
Stare Decisis ◽  
Legal Principles ◽  
Legal Problems ◽  
The Supreme Court ◽  
Pure Case ◽  
The Impact ◽  
Court Of Appeal

This chapter examines the use of case law to solve legal problems. In the study and practice of law we seek to analyse legal principles; and the ‘principles’ in English law are derived from pure case law or from case law dealing with statutes. The discussions cover the idea of binding precedent (stare decisis); establishing the principle in a case; the mechanics of stare decisis; whether there are any other exceptions to the application of stare decisis to the Court of Appeal that have emerged since 1944; whether every case has to be heard by the Court of Appeal before it can proceed to the Supreme Court; precedent in the higher courts; other courts; and the impact of human rights legislation.

Narratives of the Constitutional Covenant

Daedalus ◽  
2012 ◽  
Vol 141 (1) ◽  
pp. 43-51
Author(s):  
Peter Brooks
Keyword(s):  
Supreme Court ◽  
Planned Parenthood ◽  
Stare Decisis ◽  
The Past ◽  
The Supreme Court ◽  
American Society ◽  
Narrative Rhetoric

The constitutional narrative plays perhaps a surprisingly important role in American society. It claims to unfold present judgment from past precedent, according to the doctrine of stare decisis, given an eloquent exposition by the Supreme Court in Planned Parenthood of Southeastern Pennsylvania v. Casey, where the Constitution is referred to as a “covenant” among generations. Analysis of this and other covenantal narratives spun by the Court suggests that despite the emphasis on precedent they may work according to the retrospective logic of narrative itself, in which elements become functional in terms of what follows them. Plots work from end to beginning, reinterpreting the past in terms of the present. The Supreme Court opinion, when subjected to an analysis sensitive to its narrative rhetoric, suggests something akin to the structure of prophecy and fulfillment in its composition of the covenantal narrative.

scholarly journals L'étanchéité de l'A.A.N.B. est-elle menacée?

2005 ◽  
Vol 18 (2-3) ◽  
pp. 383-396
Author(s):  
Jean-Charles Bonenfant
Keyword(s):  
North America ◽  
Supreme Court ◽  
Supreme Court Of Canada ◽  
German Federal Republic ◽  
Privy Council ◽  
Stare Decisis ◽  
British North America ◽  
The Supreme Court ◽  
Distribution Of Powers ◽  
Canada Limited

In his opinion in John A. MacDonald, Railquip Enterprises Ltd and Vapor Canada Limited, Chief Justice Laskin commented that in the future it might be necessary to reconsider the 1937 Labour Conventions Decision which established the « watertight compartments » doctrine applicable to the implementation of treaties concluded by Canada. According to this doctrine as it was set forth by the Privy Council, the fact that Canada can enter into treaties with other countries does not mean that the Federal Parliament of Canada can legislate contrary to the distribution of powers provided for by sections 91 and 92 of the British North America Act. In his article, Professor Bonenfant recalls the criticism which the Privy Council evoked, particularly that which appeared in the June, 1937, issue of The Canadian Bar Review. If the Supreme Court of Canada wishes to revise the decision of the Privy Council, it will not be hampered by the rule of stare decisis. But, Professor Bonenfant writes, whatever the judicial solution may be, it would probably be better to follow the example of other countries, particularly the example provided by article 32 of the Constitution of the German Federal Republic, and seek a political solution. In this domain as in others, if federalism has failed in Canada, he writes that it is perhaps because the interpretation of Canada's Constitution has been left to the intellectual virtuosity of the members of the Privy Council and of the Supreme Court.

The Role of Stare Decisis in the Reconsideration of Roe v. Wade

1989 ◽  
Vol 15 (2-3) ◽  
pp. 204-210
Author(s):  
Albert P. Blaustein ◽  
Edward R. Grant ◽  
Ann-Louise Lohr ◽  
Kevin J. Todd
Keyword(s):  
Reproductive Health ◽  
Health Services ◽  
Supreme Court ◽  
Reproductive Health Services ◽  
Stare Decisis ◽  
The Supreme Court ◽  
Abortion Laws ◽  
Roe V Wade

Webster v. Reproductive Health Services represented the first occasion in which a state, defending a challenge to its abortion laws, called for the Supreme Court to reconsider Roe v. Wade. This opportunity presented a two-fold challenge to those engaged in seeking the reversal of Roe through the courts. First was to persuade the Court that Roe had been erroneously decided. Second was to overcome the defense of Roe premised upon stare decisis.Two briefs, representing separate groups of Members of Congress and Senators as amici, were filed on behalf of the appellants, each addressed to one of these challenges.

scholarly journals The highest courts’ activities as a factor establishing precedent in the capacity of a source of Ukrainian law

2020 ◽  
pp. 365-369
Author(s):  
Vasyl Nepyivoda ◽  
Ivanna Nepyivoda
Keyword(s):  
Supreme Court ◽  
Constitutional Court ◽  
Stare Decisis ◽  
Legal Rules ◽  
National Courts ◽  
European Court ◽  
The Supreme Court ◽  
State Of Affairs ◽  
Obiter Dictum

The Ukrainian legislation does not apply the term «precedent». It is understandable for the legal system of the Romano-Germanic family. However, judicial precedents serve as de facto source of Ukrainian law. Activities of the highest judicial institutions, the European Court of Human Rights (ECtHR), the Constitutional Court of Ukraine and the Supreme Court, providing guidelines on application of particular legal rules are principal contributors for this state of affairs. The paper provides an overview of such activities in order to evaluate the process and its prospects. Covering the ECtHR activities, it is noted that the key elements of precedent law, such as application of stare decisis doctrine, ratio decidendi and obiter dictum components in decisions, are available there. Ukrainian courts are obliged by the statutes to apply ECtHR judgements and decisions in their own cases. Hence, the judicial precedents created by the ECtHR are the source of Ukrainian law. This discussion is followed by an analysis of the Constitutional Court of Ukraine decisions. It is concluded that been interpretative precedents they serve as a source of law as well. The third institution under examination, the Supreme Court, is empowered, inter alia, to formulate in its rulings guidelines for the application of law in a variety of situations. Since such rules are binding on the courts and other authorities, they have inherent features of the precedents and should be considered as a source of law. The article summarizes that Ukraine falls within the continental Europe’s general trend. It implies the significant growth of the role of the European and national courts as a rule-making institutions resulting in reinforcement of the precedent as a source of law and its formalization in terms of the civil law jurisdictions. In general, such process allowing prompt adaptation to the contemporary realities is positive. To facilitate it, the term «precedent» have to be introduced into the practical area. In particular, the role of judicial precedent as a source of law should be reflected in the Ukrainian procedural legislation.

scholarly journals Let's (Not) Make This Work! Why Stare Decisis Workability Should be a Sword but Not a Shield

2019 ◽  
Author(s):  
Audrey Lynn
Keyword(s):  
United States ◽  
Supreme Court ◽  
Separation Of Powers ◽  
The United States ◽  
United States Supreme ◽  
Constitutional Interpretation ◽  
Stare Decisis ◽  
The Supreme Court ◽  
Lower Courts ◽  
History Of

A factor of the United States Supreme Court’s stare decisis test, workability differentiates precedential rules that have proven easy for lower courts to apply in a consistent and fair manner from those that have not. This note addresses the question of whether workability is a legitimate reason for retaining a given interpretation of a statute. The Note begins by providing an illustration of what this Note will sometimes refer to as the “preservative use” of workability. The Note then lays out the history of workability as a consideration of stare decisis and describes how the factor has changed in recent decades. In so doing, its focus is on workability in the context of statutory interpretation. In order to explain the background and development of the factor, however, it is necessary to discuss specific cases in which the Supreme Court has applied workability in the context of constitutional interpretation. The two contexts must be differentiated for purposes of this Note because the thesis of this Note—i.e., that preserving an incorrect interpretation of a statute because of its relative workability violates separation of powers—has no parallel when a court interprets a constitution because in that case there is no inherent infringement on legislative power. This Note then explains why the change toward using workability to preserve erroneous precedent is not required logically, contravenes the basic purposes of stare decisis, and is constitutionally invalid as a violation of separation of powers. Finally, this Note proposes a new way to articulate the stare decisis test that does not discard workability as a consideration but precludes the preservative use criticized by this Note.

scholarly journals Watertight Compartments: Getting Back to the Constitutional Division of Powers

2017 ◽  
Author(s):  
Asher Honickman
Keyword(s):  
Supreme Court ◽  
Modern Trend ◽  
Privy Council ◽  
Mutual Exclusivity ◽  
Stare Decisis ◽  
Division Of Powers ◽  
The Supreme Court ◽  
Degree Of Overlap

This article offers a fresh examination of the constitutional division of powers. The author argues that sections 91 and 92 of the Constitution Act, 1867 establish exclusive jurisdictional spheres — what the Privy Council once termed “watertight compartments.” This mutual exclusivity is emphasized and reinforced throughout these sections and leaves very little room for legitimate overlap. While some degree of overlap is permissible under this scheme — particularly incidental effects, genuine double aspects, and limited ancillary powers — overlap must be constrained in a principled fashion to comply with the exclusivity principle. The modern trend toward flexibility and freer overlap is contrary to the constitutional text. The author argues that while some deviation from the text is inevitable due to the presumption of constitutionality and stare decisis, the Supreme Court should return to a more exclusivist footing in accordance with the text.

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