Comments
I think you use the word “closure” too glibly. It implies that there is some “true” answer to this question and that if that question were to reach the Supreme Court, the Court would enlighten us as to what that true answer is. Isn’t the reality that the answer to the question would depend on the facts of the specific case, the context in which the litigation occurs, who prevails at the trial and appeals courts, how the lower court opinions are drafted, and (finally but definitely importantly) the composition of the Supreme Court that hears the case? And, even once the Supreme Court has ruled, are we sure that would give us “closure”? Precedents are often viewed as obstacles to be overcome rather than decisions that are the natural result of the application of the law to the facts of the case.
Posted by: Stuart | Mar 4, 2016 3:50:23 PM