Vanity -- What are Alito's factors for Stare Decisis?

Free Republic ^ | 01/12/2006 | Piranha

[Piranha]

This morning, Judge Alito mentioned Stare Decisis, the issue of a precedential legal opinion that may have been decided incorrectly. He said that he had previously discussed the factors that come into play when a stare decisis situation arises.

Is anyone here aware of what those factors are and how he said he would use them? I have not been listening to/watching the hearings regularly and I missed that analysis.

Thank you.

[Piranha]

what source are you quoting?

[Froufrou]

http://www.lectlaw.com/def2/s065.htm

It happened to be the first one I googled. I'm sure there are better articles there, though. The fourth one down had something about how stare decisis subverts the law. Think I'll go back and look at that.

[Froufrou]

Exactly, well said!

[Clump]

Incomprehensible in the sense that one cannot know based on the test how one would come out in a given situation. There is so much wiggle room that it is hardly worth the discussion. Even Justice Thomas paid lip service to stare decisis in his hearings. But he clearly does not hesitate to correct bad precedent.

[Clump]

I should read all posts to me before replying. I guess we are even now:)

[MamaTexan]

But he clearly does not hesitate to correct bad precedent.

And THAT is the most important thing!

[Clump]

You don't really believe that. You'd want every case to be a case of first impression? The law would be completely unpredictable. Heck, even the admissibility of evidence would be unknown.

That is why I qualified my opposition to stare decisis by saying that case law grounded in the Constitution should be relied upon. But precedent in which the Constitution was clearly used as a pretext should not be followed, no matter how many times it has been reaffirmed, how much time has passed, or degree of liberty reliance involved.

Having been forced to further explain my position, I am now convinced that my blanket rejection of stare decisis was too far sweeping.

[Ditto]

I am a lawyer and I am opposed to this doctrine altogether. A decision need only rest on this doctrine when the justice cannot base the decision on the Constitution. Case law should only be relied upon when the precedential case was grounded in the Constitution to begin with.

I'd say that most cases don't really involve Constitutional issues and that respecting precedence is a strong consideration (not a command from on high) in order for the law to have some degree of predictability.

On Constitution issues, I would agree generally with you. Horrendous SC decisions such as Dred Scott, Plessey and Roe were obviously not based on the Constitution but on political/social grounds and there is absolutly no need to respect them.

[inquest]

Therefore, according to that line of reasoning, the court should be more concerned with accurate interpretation of the constitution and less concerned with the predictability inherent in a settled matter.

We can illustrate this even further by looking some more at your example of securities legislation. You noted that predictability is a good thing with regard to this type of legislation. But no court in its right mind strike down an attempt by the legislature to change these laws, on the grounds that it would mess up people's expectations of the law. That's because the acts of a legislative assembly are themselves predictable and can be controlled by appeals to the people.

Applying that logic to constitutional cases, there's no valid reason for refusing to lift an erroneous judicial prohibition against certain types of legislation, because it would still be up to the people to decide whether or not to reinstate the legislation if they decide they want it.