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Wednesday, April 02, 2008

Statutory Stare Decisis

The Supreme Court often observes that stare decisis ought to have "special force" in the context of statutory interpretations.  The Court usually advances one of two rationales for the rule.  Sometimes, it claims that congressional silence following a statutory interpretation opinion reflects congressional acquiesence in it.  Other times, it claims that even apart from congressional acquiesence,  heightened stare decisis effect respects separation of powers by shifting policymaking responsibility back to Congress, where it belongs.  (If you are interested in a fuller explanation of both the doctrine and the criticisms of it, I have an article about this in the GW Law Review.)

Both of these rationales are subject to almost universal scholarly contempt.  (See here for a notable exception.)  Despite that contempt, the principle continues to have traction in the Supreme Court, which professed allegiance to it twice in the last three months. (See LaRue v. DeWolff and John R. Sand & Gravel).  It also continues to have traction in the courts of appeals, where, as my GW piece argues, it makes even less sense. 

So much for the influence of scholarship on the judges . . .

Posted by Amy Barrett on April 2, 2008 at 12:23 PM in Constitutional thoughts | Permalink

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