When precedent proves questionable: a structural analysis of overturning precedent on the US Supreme Court
by Jonathan S. Hack
International Journal of Public Law and Policy (IJPLAP), Vol. 2, No. 1, 2012

Abstract: When looking to overturn precedent, US Supreme Court Justices are faced with a challenge, how to maintaining the guise that they have not crafted new law. The principle of stare decisis dictates that when adjudicating cases, precedent should influence and direct future rulings. For countless reasons, the justices do deviate from precedent, intermittently expunging established precedent by overturning cases, and substituting the old with a new view of the law. How then do majority opinions simultaneously maintain the facade of judicial interpretation while asserting new law? Through the analysis of overturning cases three factors: 1) dismissal; 2) invocation of precedent; 3) appeal to societal norms – emerge in order to successfully supplant old law, while maintaining institutional legitimacy.

Online publication date: Sat, 20-Sep-2014

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