“Is Justice Kagan Done With Stare Decisis?”
I saw this post at the “Re’s Judicata” blog, written by Prof. Richard Re (University of Virginia), and found it very interesting; I asked Prof. Re whether I could repost it, and he graciously agreed:
The Court recently heard argument in Ysleta del Sur Pueblo v. Texas, a statutory-interpretation case about Indian tribes’ ability to regulate or conduct games like bingo. But perhaps the most talked-about aspect of the case was a much more broadly applicable rumination by Justice Kagan. Here it is:
JUSTICE KAGAN: I’m about to take you outside the scope of this case, so I apologize beforehand. But Justice Alito raised what to me is an interesting question that I’ve been thinking about a good deal about what these substantive canons of interpretation are and when they exist and when they don’t exist.
They’re all over the place, of course. It’s not just the Indian canon. Next week, we’re going to be thinking about the supposed major questions canon. There are other canons.
I mean, if you go through Justice Scalia’s book, you’ll find a wealth of canons of this kind, these sort of substantive canons. Some of them help the gover
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