Free Republic
Browse · Search
News/Activism
Topics · Post Article

To: Piranha
I agree. My point is that these "tests" always give the nominee plenty of wiggle room anytime precedent is revisited. No person can predict how the test will apply in any given situation. It is just like broad legal tests applied by different judges to a similar set of facts in coming to different conclusions.

I think my point was to poke fun at stare decisis. 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.

Roe is a good example of precedent not worthy of being respected, let alone followed. Other cases, dealing with the 4th Amendment for instance, have legal value which should be used as a guide. They did not originate in a broad sweeping social policy revolution.

This thread will self destruct if and when I am ever nominated to the federal bench (as if my opinions here would be my biggest problem).

7 posted on 01/12/2006 9:22:27 AM PST by Clump
[ Post Reply | Private Reply | To 3 | View Replies ]


To: Clump

To me, Stare Decisis is judicial laches. To the extent that the affected public (my phrase) has come to rely on a proposition as settled law, it would be disruptive to reverse it because it has come to be viewed as erroneous from the outset. Otherwise, there would be no predictibility of a legal outcome and people who want to act within the confines of the law would have a harder time doing so.

In my own opinion, if Roe v. Wade were settled law to the extent that stare decisis clearly should be applied, then the Democrats on the committee (and Specter) would not be so frantic in trying to extract a commitment not to overturn it.

On the other hand, the securities laws, to name one area where stare decisis is important, are filled with made-up interpretations that have come to provide a settled and predictable model of outcomes, which securities practitioners can use to plan their own behavior.


10 posted on 01/12/2006 9:31:52 AM PST by Piranha
[ Post Reply | Private Reply | To 7 | View Replies ]

To: Clump
Case law should only be relied upon when the precedential case was grounded in the Constitution to begin with.

YES!

Please disregard my previous question

(I really should read ALL the comments before I post :)

12 posted on 01/12/2006 10:05:15 AM PST by MamaTexan ( I am NOT a 'legal entity', NOR am I a *person* as created by law!)
[ Post Reply | Private Reply | To 7 | View Replies ]

To: Clump
I am a lawyer and I am opposed to this doctrine altogether.

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.

18 posted on 01/12/2006 10:48:30 AM PST by Dog Gone
[ Post Reply | Private Reply | To 7 | View Replies ]

To: Clump
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.

28 posted on 01/12/2006 12:35:31 PM PST by Ditto ( No trees were killed in sending this message, but billions of electrons were inconvenienced.)
[ Post Reply | Private Reply | To 7 | View Replies ]

Free Republic
Browse · Search
News/Activism
Topics · Post Article


FreeRepublic, LLC, PO BOX 9771, FRESNO, CA 93794
FreeRepublic.com is powered by software copyright 2000-2008 John Robinson