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Friedman on Stealth Overruling & Miranda v. Arizona

By Lawrence Solum

Barry Friedman (New York University School of Law) has posted The Wages of Stealth Overruling (With Particular Attention to Miranda v. Arizona) (Georgetown Law Journal, 2010) on SSRN. Here is the abstract:

Over the last few years ? and especially following the 2006 Term ? commentators have criticized the Supreme Court for engaging in ?stealth overruling.? This article examines the phenomenon, trying to ascertain why the justices engage in the practice and how we should feel about it. The article focuses on the gradual overruling of Miranda v. Arizona, because here tangible evidence is available about the benefit to the justices ? and costs to the rest of us ? of the practice of stealth overruling. The article demonstrates that by engaging in stealth overruling the justices are able to see that their will is done by lower courts and public officials, yet avoid any negative effect from public opinion. While the strategy benefits the justices, it has costs. Doctrine is rendered incoherent, and public officials are encouraged to evade federal law. Of greatest concern, stealth overruling tempers the dialogue between the Court and the public about the proper meaning of the Constitution, leaving the course of constitutional law solely in the justices? hands.

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The title of the post has been fixed "stealth" not "steal."

Full post as published by Legal Theory Blog on July 27, 2010 (boomark / email).