January 2011
Harvard Journal of Law & Public Policy;Winter2011, Vol. 34 Issue 1, p121
Academic Journal
An essay is presented on the combatibility of and the absence of conflict between originalism and precedent. The essayist argues that the Constitution is not displaced when a precedent is followed because it is legislated by U.S. Congress. A consequentialist's approach determines the benefits of following the original meaning, or the precedent which then forms the basis for a compatible doctrine. The essayist recommends following a precedent when overturning results in great costs and when it is supported by supermajoritarian consensus.


Related Articles

  • RECONCILING ORIGINALISM AND PRECEDENT. McGinnis, John O.; Rappaport, Michael B. // Northwestern University Law Review;2009 Special Issue, Vol. 103 Issue 2, p803 

    This article examines the compatibility between the original meaning of the U.S. Constitution and precedent. It reveals that history of precedent suggests that the Constitution does not forbid the use of precedent. It provides a constitutional interpretation that authorizes precedent. It also...

  • Citations to Foreign Courts--Illegitimate and Superfluous, or Unavoidable? Evidence from Europe. GELTER, MARTIN; SIEMS, MATHIAS M. // American Journal of Comparative Law;Winter2014, Vol. 62 Issue 1, p35 

    The theoretical arguments in favor and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions as to their actual purpose. This Article aims to fill this gap in the literature. It offers quantitative...

  • AR TEISMUI LENGVA I�LIKTI TIK INTERPRETATORIUMI? Baranauskas, Egidijus // Jurisprudencija;2009, Vol. 2 Issue 116, p201 

    The boundary between interpretation and creation of law is sometimes so subtle and intangible that the court judgments may give rise to discussions about judges having taken the role of lawmakers. This article reveals the concept of 'precedent' in the Lithuanian legal system as the influence of...

  • Precedents in the Mountains: On the Parallels and Uniqueness of the Cases of Kosovo, South Ossetia and Abkhazia. Müllerson, Rein // Chinese Journal of International Law;Mar2009, Vol. 8 Issue 1, p2 

    International law, especially its customary part, evolves to a great extent through acts of State practice serving as precedents. If States do not want that their behaviour becomes law (i.e. if they prefer to act contrary to Kant's categorical imperative), they claim that certain acts of their...

  • LA ESQUIVA DEFINICIÓN DEL DERECHO, A LA LUZ DE LOS CÓDIGOS MESOPOTÁMICOS. Escobar-Córdoba, Federico // Vniversitas;jul-dic2008, Issue 117, p65 

    Law is usually understood today from a modern and western point of view, that is, as rules generated by the State and binding on citizens. Even legal historians tend to reproduce this understanding of law. However, the thesis of this article is that such a definition is insufficient, even more...

  • Fordæmi um fordæmi. Hallvarðsson, Einar Karl // Bifröst Journal of Social Science;2010, Vol. 4, p19 

    This article discusses several judgements by Icelands Supreme Court which seem to reflect differing understandings of the status of judicial precedents. Despite the fact that Icelandic courts are not constitutionally or legally obligated to follow precedents, case law shows a very strong...

  • ORIGINALISM, CONSERVATISM, AND JUDICIAL RESTRAINT. STRAUSS, DAVID A. // Harvard Journal of Law & Public Policy;Winter2011, Vol. 34 Issue 1, p137 

    The article reports on the concepts of originalism, conservatism and judicial restraint, their relevance and problems of adaptation, in light of the economic, demographic and social changes in the 21st century. Construction, that is dependent on precedent and policy, is presented as the solution...

  • Books Received 62.3.  // American Journal of Comparative Law;Summer2014, Vol. 62 Issue 3, p819 

    No abstract available.

  • Accept no substitute! Baxter, Harold // Accountancy;Nov73, Vol. 84 Issue 963, p71 

    Shows how the judge's decision in the `British Insulated & Helsby Cables Ltd. v Atherton' case is of doubtful authority and should not be accepted without reservation as expressing the principle embodied in the law in Great Britain. Fundamental principle of legal interpretation that the dicta...


Read the Article


Sorry, but this item is not currently available from your library.

Try another library?
Sign out of this library

Other Topics