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Summary Reversals by the Supreme Court

Gerard Magliocca

Gerard N. Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law. Professor Magliocca is the author of three books and over twenty articles on constitutional law and intellectual property. He received his undergraduate degree from Stanford, his law degree from Yale, and joined the faculty after two years as an attorney at Covington and Burling and one year as a law clerk for Judge Guido Calabresi on the United States Court of Appeals for the Second Circuit. Professor Magliocca has received the Best New Professor Award and the Black Cane (Most Outstanding Professor) from the student body, and in 2008 held the Fulbright-Dow Distinguished Research Chair of the Roosevelt Study Center in Middelburg, The Netherlands. He was elected to the American Law Institute (ALI) in 2013.

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4 Responses

  1. Bill Reynolds says:

    That’s one way to slay a precedent the Court believes to be wrong even when they cannot agree on what the law should be.California does it through a decertification of precedent. Both are very pernicious practices–cts deciding without opining have crossed the line into arbitrariness

  2. Douglas Berman says:

    What’s wrong with doing error correction at the SCOTUS level? Among other benefits, it helps ensure that the circuits feel they should always work a little harder to make it sure they get it right even in cases in which there is not a circuit split or other factors that make a cert grant likely.

    Indeed, in many cases, a full cert grant seems like a waste if the Justices are 9-0 confident that the lower court got it wrong (as in the Bobby v. Bies case last Term).

    I agree that the summary reversals are often examples of error correction, but why isn’t that a proper function for SCOTUS sometimes?

  3. Judge Reinhardt once said, of lower court rulings that contradict the Supreme court, that “They can’t catch them all.” Meaning, if the lower courts just ignore the Supreme court, they’ll prevail in most cases just because the Supreme court lacks the manpower to address all those cases.

    Perhaps this is the Supreme court’s response?

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