Precedent on Precedent

14 Pages Posted: 1 Jun 2020 Last revised: 14 Jul 2020

See all articles by Nina Varsava

Nina Varsava

University of Wisconsin-Madison

Date Written: May 2, 2020

Abstract

In the recent decision of Ramos v. Louisiana, the U.S. Supreme Court held that the Sixth Amendment guarantees criminal defendants charged with serious offenses the right to unanimous convictions in state jury trials. A majority of the justices agreed on that much. But a majority could not agree on fundamental and transubstantive underlying questions about the nature and power of precedent. The decision involves a convoluted debate about whether and when and how past cases are binding on new ones. On these questions, the court is radically fractured, offering up a cacophony of no fewer than five distinct views on stare decisis, with no more than three justices agreeing on any one of them. This essay illuminates the justices’ conflicting approaches to precedent, shedding light on their covert assumptions and extraordinary implications.

Keywords: Precedent, Stare decisis, Ramos v. Louisiana, Plurality decisions, Supreme Court, Judicial decisionmaking, Marks v. United States, Sixth Amendment

Suggested Citation

Varsava, Nina, Precedent on Precedent (May 2, 2020). 169 University of Pennsylvania Law Review Online (2020) (Forthcoming), Available at SSRN: https://ssrn.com/abstract=3591153 or http://dx.doi.org/10.2139/ssrn.3591153

Nina Varsava (Contact Author)

University of Wisconsin-Madison ( email )

United States

HOME PAGE: http://law.wisc.edu/profiles/nvarsava@wisc.edu

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