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Five (More) Thoughts on the Healthcare Decision

Dave Hoffman

Dave Hoffman is the Murray Shusterman Professor of Transactional and Business Law at Temple Law School. He specializes in law and psychology, contracts, and quantitative analysis of civil procedure. He currently teaches contracts, civil procedure, corporations, and law and economics.

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1 Response

  1. A.J. Sutter says:

    I agree about the Fishkin post; and what contributes to the hyperbole of the comment “The decision was the most important court victory for liberalism in my lifetime” is that significant decisions even under the Burger Court (to say nothing of the Warren Court) may antedate Prof Fisher by just a couple of years (e.g., I’d guess only 5 or 6 in the case of Roe and US v Nixon).

    But your comment about praising Justices “for their fidelity to the rule of law” if they follow the CJ’s language on the Commerce Clause issue begs the question of whether the language really is precedential. Indeed, we might blame them for incompetently confusing dicta with precedent, or for blurring the line between the two intentionally and in bad faith, or for simply being weak and not sticking to their previous convictions (unlike, in many cases, Scalia, Thomas and Alito). I don’t imagine that any of the four Justices on the Ginsburg opinion will act in bad faith or be incompetent, though weakness of conviction is perhaps a possibility for one or two. The bets are off, though, about how to characterize the actions of any future Justices who may treat the CJ’s remarks as precedent.

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