Wednesday, April 12, 2006
This article on Volokh reminded me of the debate held at the law school this term on the importance of precedent. Precedent definitely seems to me to be the old two-edged sword. Both sides usually use it to uphold things they like, while decrying it as "clinging to bad law" when they don't. In my view, precedent is something that can be considered, but especially in matters of constitutional law, it shouldn't be as dispositive as it is. That's why I didn't like some of the answers the two newest Justices made in their congressional hearings. For once I wanted them to say, "Yes, I think there are old decisions that are totally unconstitutional, irrational, and immoral, and if I get the chance, I will vote to overturn them." I know it's easy for me to say, being on the outside, with no responsibility except to my own conscience, and (probably) no potential harm that could be done if I clearly express my opinions (or at least as clearly as I am capable of). In other words, I don't think stare decisis should be as large a consideration as it is. And if that puts me on Mike Paulsen's side, that's fine by me.
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