Write my article for me?

[Malla Pollack]

This term's decision on plant patents bothers me. JEM Ag v. Pioneer
INT'L. Scalia (who dislikes legislative history) based his concurrence
on the Sup Court's early misread of a Committee Report as requiring
support under stare decisis. The majority purported to defer to
Congress' determination of the meaning of statutory lang. Odd because
the language was enacted in 1790, the Sup Court's read was based on the
earlier misread of a 1950s Com. Report.  The deference as actually to
the Patent & Trademark Office's over reading of an earlier Sup Court
case (the one that misread the Com. report-- Chakrebarty).
     I should warn you, however, that I submitted an amicus brief in
J.E.M. Ag which argued for deference to Congress.

Malla Pollack
Northern Illinois Univ., College of Law
DeKalb, Illinois 60115
815-753-1160; (fax) 815-753-9499
mallapollack at niu.edu

>>> stoke001 at MAROON.TC.UMN.EDU 01/20/02 07:35PM >>>
Dear friends on Conlawprof list:

I'm seeking opinions/ nominations on two points related to an essay
I was supposed to have written by now:

1.  In the last ten years or so, has the resolution of any Supreme
Court case (constitutional or statutory) turned almost exclusively, or
heavily, on stare decisis, really?  Are there any significant cases
where precedent has genuinely been a significant factor?  (Are
there any where the Court *purports* to use it as a factor but
precedent seems more-or-less irrelevant?)

2.  Same time period:  Is there evidence that the Court has been
increasingly "judicial supremacist", or more "arrogant" than before?
I am not sure what counts as evidence of this, but I am thinking
along the lines of overt declarations of the Court's own supremacy,
implicit condescension that anyone might dare to question their
decisions, etc, cavalier dismissal of the views of other branches,
etc. etc.  (Is there any connection between such an attitude and
adherence to precedent?  Between such an attitude and too-easy
disregard of precedent?)

I have my own nominations and ideas, but I want to see what others
think and if you all have some better examples.  Anyone think the
Court has been *more* deferential to others' views than it once was?
Answer on-list or off.  (I think some of the answers might be of
general interest.)

Thanks for your help.

Michael Stokes Paulsen
University of Minnesota Law School
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