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To: Cicero
Similarly, we have a practice of relying upon judicial precedent (so-called stare decisis), which is no less extensive post-Holmes than pre-Holmes. That made sense in a legal system that regarded judicial opinions as “evidence” of what “the law” is. It makes no sense in a legal system that regards the judicial opinion itself as “the law,” any more than it would make sense to bind today’s legislature to the laws adopted in the past.

Nails it there. There's a lot of confusion among even legal commentators about what judicial decisions are and are not. They keep referring to "the state of the law" when what they're really talking about is the state of judicial opinion. They're not the same.

6 posted on 12/06/2005 1:34:51 PM PST by inquest (If you favor any legal status for illegal aliens, then do not claim to be in favor of secure borders)
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To: inquest

In the old days of Common Law, stare decisis really meant something. It was the law as it had been interpreted by numerous judges over hundreds of years. And that law, in turn, was based on divine law and common law.

Now, as you say, it means nothing but the latest judge's latest opinion. It's noticeable that liberals always plead stare decisis when it comes to their precious decisions like Roe v. Wade, but they ignore it when it comes to overturning hundreds of years of precedents in order to get with the program.

That's Scalia's point. In an age of arbitrary opinions, it means nothing any more.


7 posted on 12/06/2005 2:18:00 PM PST by Cicero (Marcus Tullius)
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