In the law school tradition of "suspending belief," Professor Eskridge has created a hypothetical in which I, in my first case as Chief Justice of the United States, must decide whether to adhere to various antiquated and seemingly erroneous precedents interpreting the Mann Act. Eskridge assumes that I will feel compelled to adhere to these decisions, for to do otherwise, he contends, would force me to abandon the proposal for an absolute rule of statutory stare decisis that I advanced recently in this Law Review. Eskridge then offers a variety of critiques of my thesis, coming from perspectives as diverse as the critical legal studies and law-and-economics movements. The hypothetical that Eskridge has created is not a particularly difficult one for me to grapple with, as the absolute rule of statutory stare decisis is not as wooden as Eskridge might think. I shall briefly deal with his Mann Act hypothetical in Part I of this reply. In the remaining three Parts, I respond to the each of the three concurrences Eskridge has drafted.
Lawrence C. Marshall,
Contempt of Congress: A Reply to the Critics of an Absolute Rule of Statutory Stare Decisis,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol88/iss8/7