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Abstract:
This Article joins the growing debate about the relationship between stare decisis and the Constitution by addressing four important questions that have recently been raised: (1) Is stare decisis constitutionally required; (2) Is stare decisis constitutionally prohibited? (3) Can Congress abrogate stare decisis? (4) Should courts defer to the judgments of elected officials when deciding whether to adhere to precedent?

My answers to these questions (with some qualifications) are no, no, no, and sometimes. First, as I and several other writers have demonstrated, history does not support the claim that stare decisis is dictated by the framers' understanding of "judicial power." Second, stare decisis does not conflict with the Supremacy Clause because the Constitution does not preclude judges from deferring to the reasonable constitutional interpretations of other governmental actors, which is what stare decisis amounts to. Third, Congress cannot abrogate stare decisis because doing so would interfere with the power of courts to choose the methodology by which they determine what the law is, which in turn would undermine their ability to justify their decisions as legitimate. And fourth, courts should defer to the views of elected officials when deciding whether a prior decision has induced significant reliance or rests on outdated facts, but only where those views are based on the superior fact-finding capabilities of the other branches. Courts should also give serious weight to the thoughtful and considered judgment of elected officials that a prior decision was egregiously wrong. But courts should not defer to the views of elected officials when deciding whether a prior decision is practically unworkable or a remnant of abandoned doctrine because these are quintessentially legal questions that judges are best equipped to answer.

stare decisis, constitutional interpretation, judicial power, precedent, deference, casey, oath, supremacy clause

Abstract:
Is the rule of stare decisis a constitutional requirement, or is it merely a judicial policy that can be abandoned at the will of the courts? This question, which goes to the heart of the federal judicial power, has been largely overlooked for the past two centuries. However, a recent ruling that federal courts are constitutionally required to follow their prior decisions has given the question new significance. The ruling, issued by a panel of the United States Court of Appeals for the Eighth Circuit, argues that stare decisis was such an established and integral feature of the common law that the founding generation regarded it as an inherent and essential limit on judicial power. Therefore, when the Constitution vested the "judicial Power of the United States" in the federal courts, it necessarily limited them to a decision-making process in which precedent is presumptively binding.

This Article challenges that claim. By tracing the history of precedent in the common law, it demonstrates that stare decisis was not an established doctrine by 1789, nor was it viewed as necessary to check the potential abuse of judicial power. The Article also demonstrates that even if stare decisis is constitutionally required, the courts are not obligated to give prospective precedential effect to every one of their decisions. Stare decisis is not an end in itself, but a means to serve important values in a legal system. And those values can be equally well served by a system in which only some of today's decisions will be binding tomorrow.

stare decisis, precedent, anastasoff, common law, judicial power

Abstract:
One of the oldest principles of constitutional adjudication is that federal courts will decide only those constitutional questions that are necessary to the resolution of cases or controversies. This principle provides a key justification for judicial review and underlies much of the law of justiciability. Yet in recent years, the Supreme Court has systematically departed from this principle by authorizing (and in some cases, ordering) lower federal courts to decide constitutional questions even when doing so is clearly not necessary to the resolution of a case.

This Article provides the first account of this troubling development and examines it from several perspectives. The Article begins by arguing that the rise of unnecessary constitutional rulings is both part of a larger trend toward judicial supremacy and the result of pressures specific to each of the areas in which the Court has authorized such rulings. It then considers whether the Court's embrace of unnecessary constitutional rulings in four areas - qualified immunity, habeas corpus, harmless error, and Fourth Amendment good faith cases - can be squared with Article III's ban on advisory opinions, which prohibits federal courts from deciding legal questions that will have no effect on a dispute between adverse litigants. Finally, the Article considers whether the Court's recent approach, even if consistent with Article III, is good policy. Although several scholars have advocated unnecessary constitutional rulings in qualified immunity cases as a way to ensure the evolution of new rights, the Article shows that these rulings are far more likely to retard, than promote, the development of constitutional rights.

avoidance, advisory opinions, Article III, justiciability, qualified immunity, unnecessary constitutional rulings

Abstract:
If the government violates the law in a way that stigmatizes a particular group, does a member of that group have standing to challenge the violation in federal court? In the well-known case of Allen v. Wright, the Supreme Court said no. According to the Court, stigmatic harm is too abstract and generalized to support standing in most cases. To permit standing on the basis of stigmatic harm alone, the Court stated, would "transform the federal courts into no more than a vehicle for the vindication of the value interests of concerned bystanders."

This Article revisits that decision. It begins by explaining that, despite Allen, the Court has never completely ruled out stigmatic harm as a basis for standing. In equal protection, electoral districting, and Establishment Clause cases, the Court has sometimes invoked stigmatic harm as a basis for standing, while in its recent opinion in Lawrence v. Texas the Court relied on stigmatic harm to reach an issue that was not necessary to the resolution of the case. The Article then makes the normative claim that stigmatic harm should be a sufficient injury for purposes of standing. Drawing on social science research, it examines the nature of stigma, the role of law in creating and reinforcing stigma, and the harms experienced by the stigmatized. This research shows that stigmatic harm is just as concrete as other injuries the Court recognizes as sufficient for standing. Finally, after considering a number of possible objections, the Article describes various scenarios in which plaintiffs might rely on stigmatic harm as a basis for standing.

standing, stigma, injury-in-fact, lawrence v. texas

Abstract:
For four decades, the Supreme Court's decision in Brandenburg v. Ohio has been celebrated as a landmark in First Amendment law. In one short unsigned opinion, the Court distanced itself from the embarrassment of the Red Scare and adopted a highly protective test that permits advocacy of unlawful conduct in all but the most dangerous cases. But 9/11 and the threat of terrorism pose a new challenge to Brandenburg. Although the government has not resorted to the excesses of McCarthyism, it has taken disturbing steps to silence the speech of political dissenters. These efforts raise questions about the adequacy of Brandenburg to protect speech during a time of crisis and fear. They also highlight ambiguities in the Brandenburg test that have been largely ignored by courts and scholars. For instance, does Brandenburg apply during war as well as peace? Does it apply to private advocacy as well as public advocacy? And is there anything about the current terrorist threat that would make its protections inapplicable?

To answer these and other important questions, this Article undertakes a comprehensive reexamination of Brandenburg and the issue of criminal advocacy. It begins by demonstrating that Brandenburg has been gradually eroded by lower courts, both before and after 9/11. It then examines two fundamental questions at the heart of Brandenburg that have never been adequately answered: (1) Why should criminal advocacy be protected in the first place? and (2) How much protection should it receive? The Article argues that criminal advocacy should be protected because it furthers the underlying values of the First Amendment, including the search for truth, self-government, and self-fulfillment. It then rejects claims that criminal advocacy should receive less than full protection and explains, for the first time, that Brandenburg is properly understood as an application of strict scrutiny to a particular category of speech. Finally, the Article draws upon this reconceptualization of Brandenburg to resolve the many ambiguities in its framework.

Brandenburg, free speech, first amendment, incitement, terrorism, criminal advocacy