Alternatives to Originalism: Conservative and Libertarian Perspectives 1-7-11
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Uploaded by TheFederalistSociety on Jan 21, 2011
This panel discussion took place on January 7, 2011, at the Federalist Society's 13th Annual Faculty Conference in San Francisco.
Friday, January 7, 2011
5:15 p.m. - 7:00 p.m.
Location: Paris North
Panel 3: Alternatives to Originalism: Conservative and Libertarian Perspectives
--Prof. David E. Bernstein, George Mason University School of Law
--Prof. Patrick Brennan, Villanova University School of Law
--Prof. Brian T. Fitzpatrick, Vanderbilt University Law School
--Prof. Orin S. Kerr, The George Washington University Law School
--Moderator: Prof. John O. McGinnis, Northwestern University School of Law
Hotel Monaco San Francisco
San Francisco, CA
- 3 likes, 1 dislikes
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sklanger 1 year ago
Stare decisis constraints on originalist judging are greater in lower federal courts than on the Supreme Court. Lower federal courts have to contend with vertical stare decisis as well, and have no prerogative to overrule cases decided by the Court--or another panel for that matter. Yet the 9th Circuit is generally perceived as more activist than the Supreme Court even though the jurisprudential balance is in favor of precedential constraint, not originalism.
sklanger 1 year ago
Rigid, committed jurisprudential adherence to stare decisis appears to be paradoxical. Stare decisis says that stare decisis "is not an inexorable command." Payne v. Tennessee, 501 U.S. 808, 828 (1991). So even in cases where the outcome is "clear," stare decisis allows a contrary outcome. The adherent is caught in a theoretical bind even before gets to his feet.
sklanger 1 year ago
Prof. Bernstein speaks too fast, Fitzpatrick bounced around too much, Brennan was floored by McGinnis's first question, and Kerr's adherence to stare decisis as an alternative is utterly uncompelling (the problem simply reverts to liberal stare decisis vs. conservative stare decisis--the status quo ante that got us into trouble in the first place). In lieu of a viable jurisprudence, Kerr owes me a beer.
sklanger 1 year ago