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Negating Precedent and (Selectively) Suspending Stare Decisis: AEDPA and Problems for the Article III Hierarchy

36 Pages Posted: 21 Nov 2006  

Joseph Brunner

University of Cincinnati


At its core, the "province and duty of the judicial department [is] to say what the law is." Chief Justice Marshall articulated this bedrock principle of judicial independence and operation in Marbury v. Madison in 1803. Much less quoted, but no less significant, is the concept that "[t]hose who apply the rule to particular cases, must of necessity expound and interpret that rule." Any court, including "such inferior Courts as the Congress may from time to time ordain and establish," that is called on to judge an issue according to a rule should have the power to construe and develop the rule into a statement of what the law is. Over time, the definition of law is extended and constricted and applied to new situations. This definition and redefinition of law over time depends largely on reference to precedent and adherence to the principle of stare decisis. Thus, precedent and stare decisis are integral parts of the judicial department's power and duty to say what the law is.

In the realm of habeas corpus petitions, however, this power is being contravened. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (AEDPA) which, among other things, amended the statutes governing federal habeas corpus law. AEDPA imposed a statute of limitations on filing a habeas corpus petition and substantially restricted an inmate's ability to file successive petitions. Most pertinent for this Comment, however, is that AEDPA also amended 28 U.S.C. § 2254, which sets the standards for ruling on habeas corpus petitions. AEDPA added a new section, 28 U.S.C. § 2254(d)(1) (hereinafter "the AEDPA standard"), which mandates that federal district courts reviewing a habeas corpus petition can rely only on Supreme Court case law to determine whether the petitioner's incarceration violates the United States Constitution. This Comment argues that this provision undermines the judicial department's ability to say what the law is, and is an unconstitutional impairment of the exercise of the Article III judicial function.

Keywords: Constitutional Law, Article III, Judicial Power, Stare Decisis

JEL Classification: K10, K19

Suggested Citation

Brunner, Joseph, Negating Precedent and (Selectively) Suspending Stare Decisis: AEDPA and Problems for the Article III Hierarchy. University of Cincinnati Law Review, Vol. 75, Fall 2006. Available at SSRN:

Joseph Brunner (Contact Author)

University of Cincinnati ( email )

Cincinnati, OH 45221-0389
United States

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