Michael J. Gerhardt

in The Power of Precedent

Published in print March 2008 | ISBN: 9780195150506
Published online May 2008 | e-ISBN: 9780199871131 | DOI:

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In the conclusion Gerhardt reviews the basic arguments made throughout the book about the role of precedent in constitutional law, as well as the ramifications of the Roberts Court's handling of precedent in its first two years. He suggests that the Roberts Court has been entirely predictable in avoiding direct overruling of precedents, weakening precedents which the majority does not like, and grounding its opinions largely (but not wholly) in precedent. Gerhardt reiterates the case for his comprehensive framework for explaining better than other current theories (or statistical studies) the multiple functions of constitutional law. One strength he identifies in his framework is the importance it places on candor as a means for justices and other constitutional actors to clarify the significance of precedent, as contrasted with judicial minimalism, which liberates justices from having to explain the reasons for (or implications of) their decisions.

Keywords: precedent; Supreme Court; stare decisis; Constitutional law; Constitutional theory; judicial minimalism

Chapter.  2270 words. 

Subjects: US Politics

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