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March 28, 2008


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Uzair Kayani

Hi Professor Picker,

This brings back memories. I have two queries:

First, re stare decisis in constitutional versus statutory interpretation you note:

"For constitutional issues, Congress is disabled from acting by institutional design, as we have assigned the role of constitutional interpreter to the Court. In [statutory] cases, Congress is disabled from acting not by design but because of internal disagreement [between the House and Senate over whether the Court's decision was good.]"

You suggest that Congress is just as disabled in overturning the Court's statutory interpretations as in overturning constitutional ones.

But it appears the two checks are incomparable. In either case, Congress would correct the Court through an amendment. Constitutional amendments are far more difficult to pass than statutory ones. Suppose Roe v Wade or Brandenburg v Ohio were based on statute. They may not have survived. Accordingly, when a Court says that Congress can change a statute, I take it seriously, but when judges say we should amend the Fourteenth Amendment all the time, I assume they are joking. The same reasons that counsel for constitutional minimalism surely counsel for stronger stare decisis in constitutional cases as well- the changes are less reversible and potentially mroe disruptive.

Second, re Interstate Circuit, I was happy to review the pies. For me, the puzzle is how to draw the line between movie theaters and other secondary markets. Suppose everyone is a graduate student, and no one believes in buying a new car. If everyone buys second hand cars, all carmakers either (1) go out of business, or (2) lower the price of their cars. Similarly, if everyone goes to second run theaters, movie producers and first run theaters either (1) go out of business, or (2) lower the budgets for their movies. Competitive pressure seems to require this. Would we really allow vertical agreements across the board where carmakers forced used car salesmen to set minimum prices? The pie logic would still work there.

Is the distinction that controlling secondary markets in cars is impossible? Perhaps we don't see such agreements because they cannot be enforced. But if that were true, we would see car manufacturers lobbying the government to regulate used car makers. Which, I suppose, they do. Hm.

Uzair Kayani

Woops. I was wrong. I think you meant we have *weaker* stare decisis in Constitutional cases than in statutory ones.

But Justices have expressed a desire to strengthen constitutional stare decisis by suggesting the idea of "super precedents," and through Justice Roberts's minimalism. I guess the jury is out on whether constitutional precedents are weaker or stronger now than ten years ago.

Joan A. Conway

Constitutional precedents are liquid and shift depending on the balance of power within the Supreme Court. And in addition, they have always been held to political sway depending upon the leadership and control of the highest court. The weaker or stronger argument doesn't matter. What matters is the direction the controlling justices wish to take the Constitution to address the pressure from new economic forces upon the old economic forces. The justices protect their biases, and their sponsor's biases as a general rule of thumb. These Supremes are often viewed as a "joke" by Radio's Mark Levin, a Constitutional Lawyer, of the radio fame: "Get off the air you dummy!" Or his similiar comments to impose his will and interpretation on a given subject.

Quoting some young redheaded male I knew in 1959, in response to the powers that be at the Peoples Gas Company, he said, "Ours is not to rule and decide; ours is but to live or die." And the same probably holds true today after that firm drastically changed its business plan.

We are mere mortals, and the God-like Supremes are less-than-compensating with their rulings to accommodate all of our endeavors to be immortals too. Although we are not considered subjects we live under a capitalistic system and are subject to it, if not our government.


How is it possible that not one faculty member at the school of laissez faire theory has made a comment on the housing crisis and the bail out of Bear Stearns???


Agreed, but as long as there is no conspiracy to be involved in, no crime has been broken

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