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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Thursday, June 28, 2007 ::
    OK, Panetti doesn't rely on foreign law (except insofar as it relies on the Court's own precedents that do so). Much of the controversy involves trying to construe a precedent by Justice Powell, a sisyphean undertaking to begin with. Decisions like this, that give capital defendants a bite at the apple late in the process, when (according to Justice Thomas's dissent) state procedure already affords him numerous bites, have the effect of backloading and prolonging such litigation. That's not a good thing, but I can't get too fussed about it.

    Some more analytic rigor in 8th Am. analysis would be most welcome, but again, "death is different," so if conservatives are going to lose one today, this was definitely the one to lose.

    Now, about Leegin Creative and overruling Dr. Miles: the debate here is not only about the anticompetitive effects vel non of vertical price restraints, but also about the standards for overruling precedent. Justice Breyer in dissent embraces the idea -- more commonly associated with conservatives advocating the overruling of Roe -- that the Court should be less willing to overrule statutory precedents, as opposed to constitutional ones, because erroneous statutory precedents can easily be nullified by Congress.

    Yes, says the majority, but the Sherman Act (like death?) is different, because it has always been understood by the Court as giving it a mandate to create a "common law" of antitrust, and therefore the Court properly takes account of shifting trends in the market and in scholarly opinion, both among lawyers (Robert Bork is extensively cited) and economists.

    Aside from the fact that use of the term "common law" in connection with anything at the federal level of American lawmaking makes me want to scream and break things, the majority is right. I myself won't call it common law, because that's what states do, and I won't call it delegation, because that's what Congress tries to get away with doing to agencies (and almost always does). But it's pretty clear that Congress foresaw in the Sherman Act, and has since then been content with, the courts exercising wide interpretive latitude in this area.

    :: David M. Wagner 11:02 AM [+] ::

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