Comments on: Time Limits on Judicial Opinions

By: yclipse

yclipse — Sun, 05 Apr 2009 16:40:53 +0000

Bad idea. This suggests that judging is no different than legislating, which opens up all kinds of other pernicious ideas.

The concept of stare decisis is based on the premise that a reasoned legal analysis and conclusion in one case should normally be followed in the next case rather than doing it all over again. Why would the passage of a specified time change that? And if it did, for a particular reason, a later court could always take that change into account. That is what they do now.

By: Jake

Jake — Sun, 05 Apr 2009 04:50:42 +0000

Terrific idea. Once made law, this sunset provision would immediately annul Wickard v. Filburn and its progeny. The Commerce Clause would return to its original meaning, and the new Administration and current Congress would have to search for the road to serfdom in ways other than seizing and socializing large chunks of American industry.

By: Applekeys

Applekeys — Fri, 03 Apr 2009 16:39:38 +0000

It seems like context matters a great deal. The big racial preferences, national security, substantive due process cases might very well ought to expire. But sometimes there are obscure tax or bankruptcy provisions where the supreme court’s only interpretive guidance is some holdover opinion from Cardozo. Should that opinion expire?

It also would raise a question for lower courts. What if the opinion expires in an area with little supreme court activity (bankruptcy): do the lower court opinions that relied on that case, even recent ones, fall away as well?

Anyway, the idea is interesting.

By: A.W.

A.W. — Fri, 03 Apr 2009 16:36:18 +0000

The reason why this will never be widely used is because it rips the lid off the often thin veneer that these opinions are in fact “just reading the law.” Its one thing to say that affirmative action is justified because of the present reality of racial discrimination and since you believe the underlying problem will be solved in 25 years that you don’t expect affirmative action to be justified 25 years from now. But to say, “you have a right to hear the miranda rights… but only for five years” only makes it clearer that the Supremes are just making it up.

As it is, O’Connor’s 25 years comment has garnered alot of criticism, even as defensible as i find it (and regular readers know that i believe in following the constitution as written). they aren’t going to invite this criticism all the time this way.