November 2014 Vol. 113 No. 2 THE REVIEW

The Scope of Precedent

Randy J. Kozel

The scope of Supreme Court precedent is capacious. Justices of the Court commonly defer to sweeping rationales and elaborate doctrinal frameworks articulated by their predecessors. This practice infuses judicial precedent with the prescriptive power of enacted constitutional and statutory text. The lower federal courts follow suit, regularly abiding by the Supreme Court's broad pronouncements. These phenomena cannot be explained by—and, indeed, oftentimes subvert—the classic distinction between binding holdings and dispensable dicta.

This Article connects the scope of precedent with recurring and foundational debates about the proper ends of judicial interpretation. A precedent's forward-looking effect should not depend on the superficial categories of holding and dictum. Instead, it should reflect deeper normative commitments that define the nature of adjudication within American legal culture.

The account that emerges is one in which the scope of precedent is inextricably linked to interpretive theory and constitutional understandings. Divergent methods of interpretation, from originalism to common law constitutionalism and beyond, carry distinctive implications for describing a precedent's constraining effect. So, too, do various methods of interpretation in the statutory and common law contexts. Ultimately, what should determine the scope of precedent is the set of premises—regarding the judicial role, the separation of powers, and the relevance of history, morality, and policy—that informs a judge's methodological choices.


Reinventing Copyright and Patent

Abraham Bell & Gideon Parchomovsky

Speedy Trial as a Viable Challenge to Chronic Underfunding in Indigent-Defense Systems

Emily Rose

Across the country, underresourced indigent-defense systems create delays in taking cases to trial at both the state and federal levels. Attempts to increase funding for indigent defense by bringing ineffective assistance of counsel claims have been thwarted by high procedural and substantive hurdles, and consequently these attempts have failed to bring significant change. This Note argues that, because ineffective assistance of counsel litigation is most likely a dead end for system-wide reform, indigent defenders should challenge the constitutionality of underfunding based on the Sixth Amendment guarantee of speedy trial. Existing speedy trial jurisprudence suggests that the overworking and furloughing of indigent-defense attorneys that delay bringing cases to trial should be counted against the government when determining a speedy trial violation. And in light of the standards for bringing a speedy trial claim, asserting a violation of speedy trial may actually place a lower burden on the defendant than making an ineffective assistance claim. Finally, this Note contends that, in systems with the most egregious delays, defender organizations should seek structural injunctions mandating increased resource allocation to protect the right to speedy trial.


A Blended Approach to Reducing the Costs of Shareholder Litigation

Valian A. Afshar
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