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Friday, April 04, 2014

JOTWELL: Yung on Steinman on stare decisis

The new essay for JOTWELL's Courts Law comes from Corey Yung (Kansas), reviewing Adam Steinman's To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis (Virginia Law Review). Adam's article, which is great, argues for an approach to stare decisis that looks to the core rule of a case, not to its result; Corey then discusses how this approach would control the use of Lawrence v. Texas on questions of sexual autonomy.

Posted by Howard Wasserman on April 4, 2014 at 12:40 PM in Article Spotlight, Howard Wasserman | Permalink


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If I understand Steinman's view correctly, if you have a case that is factually identical in every conceivable way to that of a recent and unanimous Supreme Court case, a lower court is free to ignore the Supreme Court's result as long as they can identify a "core rule" somewhere in the Supreme Court's opinion that the judge thinks merits the opposite result. Indeed, if the Supreme Court enters a ruling for one side and then remands, the trial court on remand is free to enter a judgement for *the other side* if the trial judge thinks that the Supreme Court misapplied its own rule. Is my understanding correct?

Posted by: Orin Kerr | Apr 5, 2014 12:11:31 AM

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