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Statutory Stare Decisis in John R. Sand & Gravel Co. v. United States

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  1. Scott Dodson says:

    In addition, there was a fascinating exchange in the oral argument in which Justice Ginsburg confesses that every single Justice (and, apparently, the parties) erroneously assumed an important fact in Bowles v. Russell that turned out to be false (the erroneous assumption there was that the statute, 28 USC 2107, predated FRAP 4).

    Part of the problem with both Bowles that is again confronting the Court in John R. Sand is that the Court has never really developed a principled approach to resolving jurisdictional characterization questions. The answer, in my view, is not as simple as either text (as John R. Sand argues) or precedent (as the U.S. argues). Both of those should be factors, along with the function and purpose of the rule and its effects. I have attempted to develop such a framework (at least in the removal context) in an article forthcoming this January in Northwestern University Law Review, though I have no illusion that the Court will even read my piece. For those who are interested, it is here: http://papers.ssrn.com/abstract=964713.

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