October 2011 Vol. 110 No. 1 THE REVIEW
ARTICLES

Stare Decisis and Constitutional Text

Jonathan F. Mitchell

Almost everyone acknowledges that stare decisis should play a significant role when the Supreme Court of the United States resolves constitutional cases. Yet the academic and judicial rationales for this practice tend to rely on naked consequentialist considerations, and make only passing efforts to square the Court’s stare decisis doctrines with the language of the Constitution. This Article offers a qualified defense of constitutional stare decisis that rests exclusively on constitutional text. It aims to broaden the overlapping consensus of interpretive theories that can support a role for constitutional stare decisis, but to do this it must narrow the circumstances in which stare decisis can be applied.

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Rethinking Discrimination Law

Sandra F. Sperino
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NOTES

Deconstructing “Just and Proper”: Arguments in Favor of Adopting the “Remedial Purpose” Approach to Section 10(j) Labor Injunctions

William K. Briggs

Congress, through the 1947 addition of section 10(j) to the National Labor Relations Act, authorized district courts to grant preliminary injunctive relief for unfair labor practices if they deem such relief “just and proper.” To this day a circuit split persists over the correct interpretation of this “just and proper” standard. Some circuits interpret “just and proper” to require application of the traditional equitable principles approach that normally governs preliminary injunctions. Other circuits interpret “just and proper” to require an analysis of whether injunctive relief is necessary to preserve the National Labor Relations Board’s remedial power. This Note examines the justifications behind these two interpretations in light of section 10(j)’s statutory structure—most notably, the use of the just and proper standard in two other provisions of the National Labor Relations Act. It also considers the legislative history of section 10(j) and the public policy consequences underlying Congress’s mandate granting the Board exclusive jurisdiction to seek injunctive relief in court under section 10(j). This Note argues that an examination of these factors reveals that Congress intended for courts to focus their section 10(j) analysis on the preservation of the National Labor Relations Board’s remedial power rather than on traditional equitable principles.

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Using Public Disclosure as the Vesting Point for Moral Rights Under the Visual Artists Rights Act

Elizabeth M. Bock
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