Putting Precedent in Its Place, Part 1
This lecture dissects 'judicial power' into five components: interpretation, implementation, res judicata, stare decisis, and remedy. It applies this framework to Brown v. Board, explaining why the Court shifted the burden of proof and initially confined its holding to education, later extended in Loving v. Virginia.
"Judicial power" appears in the Constitution but is never fully defined. Akhil Reed Amar breaks it into five components and uses them to reread the Warren Court.
This lecture distinguishes the power to interpret, to implement, to render a binding judgment (res judicata), to set precedent (stare decisis), and to remedy. Amar shows how the distinction between interpreting equality and implementing it explains puzzles in Brown v. Board: why the Court shifted the burden of proof onto segregation and why it confined its 1954 holding to education, waiting until Loving v. Virginia in 1967 to strike down bans on interracial marriage.
Confronting Modern Case Law, Part 2
Next · Lecture 10Putting Precedent in Its Place, Part 2