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Reading Justice Brennan: Is There a "Right" to Dissent?
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The notion of a "right to dissent" was first proposed by the late Supreme Court Justice William Brennan in 1985 (Hastings Law Journal, 50th anniversay) as mentioned in this paper, who suggested that the constitutional foundation for a right to dissent may be found in the First Amendment and the core meaning of the Article III terms "court" and "judge."Abstract:
While there is a great deal of literature addressing the pros and cons of dissenting judicial opinions, no one has asked whether judges in a multi-judge court have a "right" to dissent. A "complete" right to dissent would include not just rights to (a) privately express one's disagreement to one's colleagues; and (b) have the fact that one does not join a majority opinion publically noted; but also (c) a right to have a written expression of one's dissenting rationale published in company with the majority's opinion. Justice Brennan delivered a wonderful "Defense of Dissents" in 1985 (Hastings Law Journal); not surprisingly, perhaps, so has Justice Scalia (Journal of Supreme Court History, 1994). This essay is introductory to a reprint of Justice Brennan's lecture, celebrating the Hastings Law Journal's 50th anniversay. The essay suggests that the constitutional foundation for a "right to dissent" may be found in the First Amendment (discussing "compelled silence" cases), as well as in the core meaning of the Article III terms "court" and "judge." More historical investigation needs to be done on the historical understanding of judges and their ability to issue dissents. Moreover, a "right to issue a dissenting opinion" does not necessarily imply a "right to defy precedent." The concepts are separable, perhaps properly so. Nevertheless, the constitutional claim for a right to dissent is not insubstantial. The essay includes a brief discussion of current judicial disciplinary charges that have been filed against a California appellate judge, Presiding Justice J. Anthony Kline, because he dissented from a majority judgment compelled (he conceded) by California precedent. Those charges should be dropped. (In August 1999 the charges against Justice Kline were in fact dropped with the Commission on Judicial Performance stating that judges "must be able to [dissent] free from fear of discipline for the free expression of their ideas.")read more
Citations
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Appealing to the Brooding Spirit of the Law: Good and Evil in Landmark Judicial Dissents
TL;DR: An examination of Harlan's Plessy v. Ferguson (1896), Holmes's Lochner v. New York (1905), Brandeis's Olmstead v. United States (1928), Murphy's Korematsu v. USA (1944), and Blackmun's Bo...
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The Past Must Not Be the Present: Legislative Supremacy and Judicial Duty in the Insular Cases
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Aportes del modelo de disidencias judiciales al sistema político: pluralismo judicial y debate democrático
TL;DR: In this paper, the authors propose a framework for discussing the problem of judicial transparency inside those countries that accept constitutional democracy and judicial review, offering a line of research and opening perspectives for future papers.
References
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Journal ArticleDOI
The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic
Book
Federal Courts and the Law of Federal-State Relations
Peter W. Low,John C. Jeffries +1 more
TL;DR: The casebook as discussed by the authors provides detailed coverage of federal courts and the law of federal-state relations, and it has been reorganized in the 8th edition to facilitate enhanced teaching flexibility.
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