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STARE DECISIS

By "Captain Liberty" and "Rumpole"

Or- "How to over rule precedent in five easy steps and on five dollars a day."A treatise. By Antonin Scalia. Assoc. Justice. U. S. Supreme Court. Our last post dealt with the decision in Montejo v. Louisiana, and our belief that it represented the thin edge of a larger wedge created by Justice Scalia.  A wedge whose ultimate end is not the evisceration of the 6th Amendment right to counsel, but the prophylactic protections of Miranda and the 5th Amendment. Montejo overturned Jackson, and to overturn Jackson (and sleep at night) Justice Scalia needed to created some rules of constitutional construction vis a vis the whens, wheres, whys and how-tos in reversing a previous supreme court precedent. RULE ONE: A precedent can be reversed if it proves "to be unworkable" To the  contrary, the fact that a decision has proved ?unworkable?  is a traditional ground for overruling it...continue to full post

Full post as published by Justice Building Blog on May 27, 2009 (boomark / email).