July 9, 2007
No Precedent
How do you teach law students the theory of precedent? It’s getting harder in the era of the Roberts Court, says Michael C. Dorf, a law professor at Columbia University. Citing a “below-the-radar counterrevolution” by the court, the professor writes on Dorf on Law that the court “has added a new technique: Now the ascendant conservative majority does not even acknowledge that what it is doing is completely inconsistent with prior liberal precedents, thus at least requiring a new exception; rather, the new technique is simply to assert fidelity to the prior precedents and then rule the opposite way.”
Suppose an exam asked whether a federal statute banning “partial-birth abortion” was valid if it contained no health exception. If a student answered “No,” and went on to list what was wrong with precedents that called for an exception, Dorf says he’d give the answer a good grade. But to argue for upholding the law without overturning precedent would earn a poor grade indeed. That’s what the Supreme Court did, says Dorf.
Karen Winkler | Posted on Monday July 9, 2007 | PermalinkComments
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