Justice Scalia, RIP

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Jon Rowe

Jon Rowe is a full Professor of Business at Mercer County Community College, where he teaches business, law, and legal issues relating to politics. Of course, his views do not necessarily represent those of his employer.

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10 Responses

  1. One thing I’ve wondered about civil code systems is, can’t at least some provisions of a code have ambiguity? And with that ambiguity, shouldn’t judges be empowered to distinguish how to resolve that ambiguity? And wouldn’t such distinctions revolve around common notions of fairness or interpretative practices as we see in common law systems? And once enough judges build a consensus on how to resolve that ambiguity, wouldn’t that consensus govern in a way that looks a little like “stare decisis”?

    I’m not saying that civil codes are in fact common law codes, just that I find it hard to think that any major code won’t eventually rely in part on a tradition of judicial interpretation in addition to a code.Report

    • Avatar Jon Rowe in reply to Gabriel Conroy says:

      This is from a friend who practices law in Louisiana, which uses the Napoleonic Code:

      “It’s called jurisprudente constante. Basically, you don’t necessarily follow a single decision of a higher court, but you do follow several decisions where the authority has remained constant. That’s what we have instead of stare decisis.”Report

  2. Avatar Pinky says:

    Justice Thomas was always more inclined to overturn old rulings.Report

    • Avatar Mike Schilling in reply to Pinky says:

      And old laws. His concurrence in Shelby County wanted to overturn more of the VRA than the rest of the majority did.Report

    • Avatar Jon Rowe in reply to Pinky says:

      I still may not completely understand this nuance. Both Scalia and Thomas are more than willing to put originalism ahead of Stare Decisis. Likewise the liberals are more willing to overturn cases whose results they disagree with.

      But in Scalia’s first best judicial world, Stare Decisis would be entirely unnecessary (if I understand him right). It has something to do with his textualism. You look strictly at the text of democratically enacted legal documents.Report

      • Avatar Pinky in reply to Jon Rowe says:

        If you want to, you can argue that Scalia wanted to write opinions that argued for the overturning of precedent. But Thomas did write opinions against precedent. So you can’t say that Scalia opposes Stare Decisis more than any of the other Justices. I’m not even sure you can argue that he’s more likely than the average Justice to call for the overturning of bad decisions.Report

        • Avatar Jon Rowe in reply to Pinky says:

          In order to work within the system Scalia made his peace with precedent. I’m referring more to his writings that were not his judicial opinions. Though, as noted, when Scalia writes a sole dissent, he could be speaking for himself only, likewise. But you tend to see his first best world from his non-judicial opinion writings. In particular those that relate to his theory on “textualism.”Report

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