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Wednesday, December 28, 2011

On changing one's mind

In a piece appearing in today's NYT, Adam Liptak explains the Eleventh Circuit's recent volte-face on whether the word "boy"  is racialized for purposes of employment discrimination. The piece itself is well worth reading, but one of the lines I liked best was the famous quote from Justice Frankfurter that Liptak used to end the essay: namely, "Wisdom too often never comes, and so one ought not to reject it merely because it comes late."

Since reversing course is something every wise person or body of leadership comes around to doing every now and then, our wise readership might also be interested in the various authorities one can invoke for changing course. Consider what Justice Jackson noted in the context of changing his mind:

Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, "The matter does not appear to me now as it appears to have appeared to me then." Andrew v. Styrap, 26 L.T.R. (N.S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: "My own error, however, can furnish no ground for its being adopted by this Court. . . ." United States v. Gooding, 12 Wheat. 460, 25 U. S. 478. Perhaps Dr. Johnson really went to the heart of the matter when he explained a blunder in his dictionary -- " Ignorance, sir, ignorance." But an escape less self-depreciating was taken by Lord Westbury, who, it is said, rebuffed a barrister's reliance upon an earlier opinion of his Lordship: "I can only say that I am amazed that a man of my intelligence should have been guilty of giving such an opinion." If there are other ways of gracefully and good naturedly surrendering former views to a better considered position, I invoke them all.

(h/t: Liptak on FB.)

Posted by Administrators on December 28, 2011 at 11:00 PM in Article Spotlight, Blogging, Constitutional thoughts | Permalink


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I've always liked Justice Harlan's comment on changing his mind: "Let it be said that I am right rather than consistent." And it's especially appropriate to this article, given that Harlan changed his mind about slavery.

Posted by: Brian L. Frye | Dec 29, 2011 1:02:51 AM

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