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Wednesday, March 04, 2015

Missing the signals

Ed: This post originally was published under Dan's name because I was inadvertently signed-in on our administrative password. My apologies.

The worst thing that can be said about the Supreme Court of Alabama's mandamus decision (besides its legal reasoning, which on a quick read seems wrong and somewhat intemperate) is that the court disregarded the "signals" that have been emanating from the Court since the fall (if not since Windsor itself) about the likely outcome on this issue. A question for the signalling people (Richard and others): Does a lower court act inappropriately if it ignores (willfully or otherwise) signals and insists on applying only the formally established precedent? In a way, this feels like another aspect of the question of whether lower courts should decide cases by attempting to "predict" what SCOTUS will do or by applying their own best judgment and analysis to reach what they believe is the correct result.

Posted by Howard Wasserman on March 4, 2015 at 11:21 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


No judge has the authority to promote marriage fraud by removing the necessary requirement for a marriage contract which is the ability and desire to exist in relationship as husband and wife.

Posted by: N.D. | Mar 4, 2015 7:43:21 PM

I mean, surely not, right? Unless we're just getting rid of that case and controversy thing.

Posted by: Think Like a 1L | Mar 4, 2015 7:15:56 PM

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