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Thursday, August 19, 2010

Friedman on Stealth Overruling

I have done some of my blogging away from my usual home recently.  Here is one example: my review, on the Jotwell blog, of Barry Friedman's new article, The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona).  I commend the article, although I also set out some criticisms of it and offer my own analysis of stealth overrulings and their relationship to broader currents in constitutional law.  Here's a taste:

One of the favorite accusations lobbed against the Roberts Court by its critics is that it frequently engages in “stealth overruling.”  It carves away at old precedents without expressly rejecting them, distorting them or limiting them to their facts and leaving them undone in all but name.  In the view of the modern Court’s critics, this is a new and very bad habit.  To repurpose the famous “umpire” analogy offered by Chief Justice Roberts at his confirmation hearings, it is like watching an umpire manipulating the strike zone until it is sometimes as large as the Solar System and sometimes as narrow as the eye of the needle.  Not many sports fans like umpires, but we can admire them for doing their job.  Not so when we believe they are finding ways to cheat the system and bend the rules.   It is far from clear that stealth overruling is new, and it can be used to what most of us agree is good effect: the Court spent decades removing the ground from underneath Plessy v. Ferguson, one brick at a time, until it was ready to topple with the slightest push.  To understand stealth overruling as more than a useful rhetorical stick with which to beat the Roberts Court, we must understand better what a stealth overruling is and what costs and benefits are involved.

That is the goal of The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona), a fine new piece by Professor Barry Friedman of New York University School of Law.  By making stealth overruling an object of careful academic study, Friedman hopes to make its nature more apparent and make possible a “normative judgment” of the phenomenon “based on facts, not speculation.”  It is a worthy goal, and Friedman largely rises to the task.  One will come away from his article with a clearer and less passion-clouded view of what stealth overruling involves and why we might disapprove of it.  I want to suggest, however, that there are some internal problems with Friedman’s account, and one big question mark.  And I want to suggest an alternative account of what is troubling about stealth overrulings, one that is more closely connected to broader problems of constitutional jurisprudence than Friedman’s article suggests. . . .

In [a] sense, stealth overruling is just a particularly glaring bad-faith example of what courts do all the time.  Stealth overruling is one cause of doctrinal confusion, but not the only one.  Our love of doctrine itself, and especially our lawyers’ faith that pure legal doctrine and our own technical genius provides the answers to all our questions, is the real culprit.  As long as we keep that faith, we should have every reason to expect that our doctrine will outrun reality, and that confusion, inconsistency, and disingenuousness will result.  Stealth overruling is thus just a particularly egregious instance of a much larger problem in constitutional law.

Posted by Paul Horwitz on August 19, 2010 at 04:18 PM in Paul Horwitz | Permalink


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I just clicked over from another air max and figured I should take a look around. Like what I see so now I'm following you. Look forward to checking out your some of your posts again.

Posted by: air max | Aug 19, 2010 11:35:53 PM

In my view, Friedman's article has a major flaw: The cases he uses as leading examples, cases interpreting Miranda v. Arizona, have not had the effect Friedman claims. Friedman asserts that these cases must have gutted Miranda doctrine so much that the doctrine has been "overruled" by "stealth." But those cases were actually quite interstitial, and they have actually made little to difference in Miranda practice. Put another way, the police haven't interpreted the cases as Friedman imagines that they must have. That creates a significant problem for the article, as the premise of "overruling by stealth" is that people think the doctrine is still there but the police know it doesn't exist. The argument doesn't work if the police themselves think the doctrine is still there -- which, in this case, they do.

Posted by: Orin Kerr | Aug 19, 2010 5:02:45 PM

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