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https://dx.doi.org/10.17613/3p...
Article . 2014
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Article . 2014
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Article . 2014
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Article . 2014
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Against Methodological Stare Decisis

Authors: Criddle, Evan J.; Staszewski, Glen;

Against Methodological Stare Decisis

Abstract

Should federal courts give stare decisis effect to statutory interpretation methodology? Although a growing number of legal scholars have answered this question in the affirmative, this Essay makes the case against methodological stare decisis. Drawing on recent empirical studies of Congress's expectations regarding statutory interpretation, we show that existing knowledge of Congress's expectations is insufficient to settle on one consistent approach to statutory interpretation. Moreover Congress has almost certainly changed its expectations over time, and this raises serious problems for methodological stare decisis from the perspective of faithful-agency theories. We argue further that many theories and doctrines of statutory interpretation are based on constitutional norms and other public values that do not depend on Congress's meta-intent. Constitutional norms and public values also change, and interpretive methodology should remain dynamic so that the law can be responsive to changing societal norms. Finally, we argue that the value of extending stare decisis effect to interpretive methodology is unproven. Although treating prior methodological decisions as binding precedent could, in theory, promote the policies underlying stare decisis, the same would be true of extending that doctrine to virtually any rules. Yet interpretive methodology is different from first-order rules of law in significant ways, and freezing higher-order legal rules into place would pose special and perhaps overwhelming difficulties. We therefore conclude that federal courts should not extend stare decisis effect to methodological decisions without seriously grappling with these difficulties and demanding much stronger evidence that such a move would improve the operation of our legal system.

Country
United States
Related Organizations
Keywords

Jurisprudence, Precedents, FOS: Law, Federal Courts, Law, Courts, Stare Decisis

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selected citations
These citations are derived from selected sources.
This is an alternative to the "Influence" indicator, which also reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Citations provided by BIP!
popularity
This indicator reflects the "current" impact/attention (the "hype") of an article in the research community at large, based on the underlying citation network.
BIP!Popularity provided by BIP!
influence
This indicator reflects the overall/total impact of an article in the research community at large, based on the underlying citation network (diachronically).
BIP!Influence provided by BIP!
impulse
This indicator reflects the initial momentum of an article directly after its publication, based on the underlying citation network.
BIP!Impulse provided by BIP!
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