Wednesday Writs: Kimble v. Marvel


Em Carpenter

Em was one of those argumentative children who was sarcastically encouraged to become a lawyer, so she did. She is a proud life-long West Virginian, and, paradoxically, a liberal. In addition to writing about society, politics and culture, she enjoys cooking, podcasts, reading, and pretending to be a runner. She will correct your grammar. You can find her on Twitter.

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11 Responses

  1. Avatar Jaybird says:

    Discussing the role of precedent, Kagan admitted that “respecting stare decisis sometimes means sticking to some wrong decisions.”

    Then what the hell is the point of the Supreme Court.Report

    • Avatar CJColucci in reply to Jaybird says:

      To settle things. As Justice Brandeis once observed, it is often more important that a question be settled than that it be settled right.Report

      • Avatar Urusigh in reply to CJColucci says:

        This is where I think it’s worth pointing out that stare decisis is not found in the Constitution anywhere. It’s axiomatic in that every argument for respecting it assumes that you already do, if you don’t then there’s no other reason to start doing so. Frankly, the history of the Civil Rights movement and the current level of controversy over Roe v Wade rather demonstrates that on any question of sufficient importance to warrant the Supreme Court rule at all the opposite is most likely true: It is more important that it be eventually settled right than that it merely be settled, because matters “settled” incorrectly by the Court rarely stay settled in the rest of the public sphere.Report

        • Avatar CJColucci in reply to Urusigh says:

          matters “settled” incorrectly by the Court rarely stay settled in the rest of the public sphere.

          Are you sure about this? Or does it apply only to cases you’ve actually heard of and have an opinion about? Just off the top of my head, here’s a sample of settled matters that may very well have been settled wrong without much public outcry:
          1. When does jeopardy attach in a criminal prosecution? The settled rule is that in a jury trial it is when the jury is sworn and in a bench trial when the first witness testifies. There is a body of scholarship that thinks this is wrong.
          2. Is a lawsuit brought by a natural person who is a citizen of state A against a corporation incorporated and having its principal place of business in state B within the diversity-of-citizenship jurisdiction of the federal courts? Some recent scholarship says no.
          3. Does the Eleventh Amendment bar suits by a citizen of state A against state A? This has been the law for well over a hundred years, yet some scholars have never accepted it as correct.
          As to your larger point, the Constitution does not contain or come with an instruction manual on how to interpret it, so saying that stare decisis is not found in the Constitution doesn’t say anything useful.Report

  2. Avatar Oscar Gordon says:

    L4: Another example of why such things need careful crafting.Report

  3. That is indeed fascinating!

    From my non-attorney point of view, I find it fascinating that Marvel agreed to pay royalties indefinitely. Perhaps they were shaken by their utter failure to execute a freedom to practice search? Or they just had incompetent counsel in the late 90s?Report

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