Decanonization

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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3 Responses

  1. GCW321 says:

    Another method is to say that the earlier decision relied on a fact or legal proposition that has since been disproven or found to be unworkable. I don’t have a specific example in mind, but it seems fairly common for a court to say, in essence, “The holding of the earlier case may have properly followed from the facts and law as we then understood them. But because that holding rested on premises that we now realize were erroneous, we have no reason to follow it.”

  2. Joe says:

    Brown v. Bd treated Plessy in some ways like the first comment suggested.

    See, e.g., “Whatever may have been the extent of psychological knowledge at the time” and “We must consider public education in the light of its full development and its present place.” So, in effect, the facts changed.

    Justice Jackson’s unpublished concurrence particularly focused on how facts have changed. This probably happens a decent number of times too. Lawrence’s “last fifty years” comment in part is a matter of looking at the facts of recent time in respect to the “liberty” at hand. The common law method also uses such a pragmatic “unworkable” sentiment.

    “Unworkable” also repeatedly occurs. It occurred in Gideon and certain establishment cases too.

  3. JHP says:

    I would submit that the abandonment of Swift v. Tyson in Erie drops into GCW321’s bucket. The Court cited “the more recent research of a competent scholar” — Charles Warren’s 1923 Harvard Law Review article on the history of the Judiciary Act of 1789 — to “establish[] that the construction given to [the Act] by the Court [in Swift] was erroneous[.]”

    Erie also introduced the notion of declaring that the prior legal regime was too difficult to apply and therefore should be abandoned. To similar effect, sse the rejection of the distinctions created by National League of Cities in Garcia v. SAMTA.