Law

"Given the extensive involvement of state violence in the process by which the corporate elite not only achieved its wealth in the past but continues to maintain and augment it in the present, it is clear that the massive inequalities of wealth that characterise present-day “capitalist” society are radically inconsistent with any approach to justice in holdings that is even remotely Nozickian."

"When Bobby Kennedy went after organized crime in the early 1960s, one of the things he learned was that the Mafia had a series of rituals new members went through to declare their loyalty and promise they’d never turn away from their new benefactors. Once in, they’d be showered with money and protection, but they could never leave and even faced serious problems if they betrayed the syndicate. Which brings us to the story of Kyrsten Sinema. For a republican democracy to actually work, average citizens with a passion for making their country better must be able to run for public office without needing wealthy or powerful patrons; this is a concept that dates back to Aristotle’s rants on the topic. And Sinema... Apparently... she decided that if you can only barely beat them, you’d damn well better join them. Sinema quickly joined other Democrats who’d followed the Citizens United path to the flashing neon lights of big money, joining the so-called “Problem Solvers” caucus that owes its existence in part to the Wall Street-funded front group “No Labels.” ... Political networks run by rightwing billionaires and the US Chamber of Commerce showered her with support... She’d proved herself as a “made woman,” just like the old mafiosi documented by RFK in the 1960s, willing to do whatever it takes, compromise whatever principles she espoused..."

"We ought not to encourage vexatious prosecutions, which tend to throw corporations into confusion."

"Health care providers are legally required to obtain patients’ informed consent before performing a medical procedure. Specific definitions of informed consent may vary from state to state, but the goal of the informed consent process is well established: to ensure that patients understand the nature and risks of the procedure they are considering and that their decision to undergo it is voluntary (AAAHC, 2016; AMA, 2016; HHS, 2017a; Joint Commission, 2016). The discussion should also include options for analgesia, sedation, or anesthesia, including their associated risks and benefits (AANA, 2016; ASA Committee on Ethics, 2016)."

"I believe that if you go and ask a chief executive of a Goldman Sachs or a BP, and they answer you honestly ... they want monopolies, they want government subsidies, they want preferences – they're not interested in free markets."

"No abuse of power has so tarnished the corporate image or shown the need for government legislation as the numerous public revelations of wholesale political and foreign bribery that came to light during the 1970s. These revelations are one of the most sordid chapters in American corporate history. Investigations revealed widespread illegal corporate political contributions and extensive bribery of foreign government officials. When the bribes were large, they significantly distorted the corporation's actual financial picture, thus misleading company stockholders as well as the Securities and Exchange Commission (SEC) and the . When U.S. corporations bribe officials of developing countries, they may help to undermine that country's political stability and in some cases contribute to the spread of anti-American feeling. A particularly serious situation develops when pharmaceutical corporations bribe health officials in other countries to obtain permission to sell dangerous drug products."

"[...] legal curbs on corporate freedoms are needed to protect citizen's freedom."

"Hitler also missed the point completely about American economic capabilities, for the cars and the refrigerators he sneered at were being produced by corporations that led the world in techniques of mass production and modern management. The Axis leaders deluded themselves into believing that, with the Great Depression, the American economic model had disintegrated. Yet despite the sluggish growth of aggregate demand in the mid to late 1930s, firms like General Motors were taking tremendous strides forward in efficiency, exploiting those economies of scale that were unique to the huge American market. Exports to Britain and the Soviet Union had given GM and its peers a foretaste of what was to come. With the American entry into the war, they were inundated with government orders for military hardware. In the First World War, the result had been a mess: production bottlenecks, chronic waste and inflationary pressure. In 1942 the opposite happened. 'The real news,' as Charles E. Wilson of General Motors put it, 'is that our American methods of production, our know-how about the business, could be applied to mass production of all these war things . . . and that is the one factor that I think our Axis enemies overlooked.' Here, too, a compromise was involved. With astonishing speed the big corporations converted themselves from the champions of a consumer society to the servants of a command economy. As John Hancock and Bernard Baruch observed: 'With the coming of war a sort of totalitarianism is asserted. The government tells each business what it is to contribute to the war program.'"

"As a psychopathic creature, the corporation can neither recognize nor act upon moral reasons to refrain from harming others."

"A century and a half after its birth, the modern business corporation, an artificial person made in the image of a human psychopath, now is seeking to remake real people in its image."

"It was at the microeconomic level, however, that the output war was really won. For the biggest wartime advances in mass production and management were made in vast factories like Ford's mile-long bomber assembly line at Willow Run, Boeing's B-29 plant at Seattle or General Motors' aero-engine factory at Allison. At peak, Boeing Seattle was churning out sixteen B-17S a day and employing 40,000 men and women on round-the-clock shifts. Never had ships been built so rapidly as the Liberty ships, 2,700 of which slid down the slipways during the war years. It was at wartime General Motors that Peter Drucker saw the birth of the modern 'concept of the corporation', with its decentralized system of management. And it was during the war that the American military-industrial complex was born; over half of all prime government contracts went to just thirty-three corporations. Boeing's net wartime profits for the years 1941 to 1945 amounted to $27.6 million; in the preceding five years the company had lost nearly $3 million. General Motors Corporation employed half a million people and supplied one-tenth of all American war production. Ford alone produced more military equipment during the war than Italy. Small wonder some more-cerebral soldiers felt they were risking their necks not in a 'real war . . . but . . . in a regulated business venture', as James Jones put it in The Thin Red Line. It was strange indeed that the recovery of the American economy from the Depression should owe so much to the business of flattening other peoples' cities."

"A man shall not sue in the Admiralty, only because it is a ship."

"At the moment it's no defence at all to say that person is consenting, because of Brown. People certainly can't consent to being killed, they can't consent to injury which amounts to actual bodily harm if it's in the course of S&M."

"For all their alleged power, big corporations are often powerless when it comes to the simple task of surviving. As Williamson notes, “Only 67 of the firms in the Fortune 500 in 1955 remained there by 2011.” “The average age of a company listed on the S&P 500 has fallen from almost 60 years old in the 1950s to less than 20 years currently,” a team of Credit Suisse analysts wrote last month. And the death rate is accelerating."

"These two arguments for inalienability, one looking to coercion and the other to invidious symbolism, begin to merge if the definition of coercion is broadened to include the desperate circumstances that are likely to be present when a competent, undeceived person, who is not being threatened with violence, is willing to sell himself into slavery. A man would have to be in pretty tight straights before he would agree to a contact like the one Bailey signed, but he signed it, and so did many others. They were not always physically threatened. There is no evidence that Bailey was. Their acquiescence cannot simply be dismissed as the product of fraud or incompetence; employment on such terms may indeed have been the best option they had. Even though Bailey’s poverty or powerlessness does not fit into classical economic notions of “coercion”-he did, after all, willingly enter into a deal that made both parties better off-we are reluctant to call a decision made in such circumstances a free choice. Consent is an ambiguous concept."

"[T]o complain in public of inequality within the private contradicts the liberal definition of the private … [I]njuries arise through violation of the private sphere, not within and by and because of it. In private, consent tends to be presumed. Showing coercion is supposed to void this presumption. But the problem is getting anything private to be perceived as coercion … [W]hy a person would “allow” force in private (the “why doesn't she leave” question raised to battered women) is a question given its insult by the social meaning of the private sphere as a sphere of choice.”"

"Parliament requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point."

"Corporation, n. An ingenious device for securing individual profit without individual responsibility."

"Each of these theorists, in other words, links the failure of neutral or equal citizenship to the creation of the private sphere, to the placement of women into this sphere, and to the indeed dangerous way in which women's bodies personify it. Consent-a public, political act-becomes meaningless in such a frameowrk. Indeed, as MacKinnon argues with reference to rape law, consent is simply assumed in the private, that “arena of choice;” it is a metaphysical quality rather than a political act. Women carry the private around with them. And it is a result of their empathatically private nature that consent theory cannot serve them as citizens in the end. My purpose over the next few pages will be to challenge this analysis. More specifically, I will try to demonstrate that to the extent that sexual legislation-and more basically, sexual identity-became central to political identity over the first few decades of the twentieth century, women, sexualized, increasingly became actors within the rhetorical public, rather than within the rhetorical private. Indeed, rape and adultery law trendered women essential, prototypical, biopolitical subjects, their bodies representative of a new, relentless concept of the political. Moreover, I will argue that it was the thetoric of consent in particular that transformed women citizens in this way. Far from meaningless or irrelevant, consent instead served as a foundation for an interwar reinterpretation of both sexual and political identity. The paradox of both the biologically passive, politically active consenting individual"

"I for one will not re-open the floodgates of Admiralty jurisdiction upon the people of this country."

"That consent has almost nothing to do with choice and everything to do with an unabashedly authoritarian understanding of political space in which rights are assumed to be waived can be seen in the actual outcome of the case in which Scarry conteztualizes her analysis. As Paul A. Lombardo has observed, “it is rarely clear in most discussions of the Cardozo opinion that Mary Schloendorff lost her case. That result is not only startling because of the way Cardozo ignored the absence of consent for dangerous and unwanted surgery, but also for its extraordinary deference to charitable immunity of hospitals, employing questionable arguments and contorted interpretations of the facts for each conclusion that would allow the case to be dismissed. The very Court that Cardozo sat on-New York's Court of Appeals-criticized the reasoning on charitable immunity in the Schloendorff case as 'logically weak' only ten years after it was decided, and it was completely overruled in 1957 when the shield of non-profit status was discarded in new York as “out of tune with life about us.' Yet we still celebrate the case as a salute to patient autonomy.” Lombardo continues by pointing out that the specific unwanted surgery performed on Mary Schloendorff was a hysterectomy to rid her of a “phantom tumor.” Lombardo 2005, 792. John T. Parry had addressed this paradox-the extent to which contemporary rights are assumed to be enforced only by the act of waiving the-as well, noting in his analysis of the 2002 case USA v. Drayton: Justice Kennedy closed with the following comments on citizenship, police conduct, and the rule of law: 'In a society based on law, the concept of agreement and consent should be given a weight and dignity of its own. Police officers act in full accord with the law when they ask citizens for consent."

"Usually assault is not consented to in law; either it cannot be consented to, or consensual assault remains assault. Yet sexual assault consented to is intercourse, no matter how much force was used."

"“She may be somewhat fearful. She may no longer have the capacity to withdraw consent. She may just go along, but that doesn’t mean that she is happy about it.”"

"The second meaning of “legitimation,” developed in critical scholarship of the late twentieth century, concerns the nature and role of consent and the specific impact of an individual’s consent to the perceived justice of either particular transactions or entire institutions to which consent is given. In liberal market economies and the legal orders that govern them, the act of consent generally insulates the object of consent even from criticism, much less legal challenge. Consent to the terms of a contract, for example, almost always insulates the fairness of the terms of that contract from both public scrutiny and legal attack, regardless of how harmful or injurious that contract turns out to be to any of the parties that consented to it. If the contract was consensual, it cannot possibly be unfair to execute it against a later regretful party, no matter how harmful its terms might appear to be. Widely shared norms against paternalistic legislation, an ideological and seemingly bottomless belief in the ability of individuals to understand and act on their own welfare, skepticism regarding the motivation of regulatory bodies or meddling individuals who would seek to upset consensual individual transactions, and at least for some, a definitional commitment to consent as that which maximizes value, all burden attempts to intervene in or even question contract terms. They may do so through “unconscionability” or “duress” limits in the common law of contract, or through more explicitly regulatory means, such as consumer protection legislation or workers’ rights laws. I have argued elsewhere that the same dynamic increasingly limits critique of intimate sexual relations: consensual sex is viewed not only as not rape, but also as not subjected appropriately to moral or political criticism. To subject consensual sex to criticism is puritanical, moralistic, or worse. Lastly, in the public sphere, “consent” operates similarly: the consent of the governed legitimates whatever governance follows. We can generalize from these three examples of the impact of consent in the private, intimate, and public spheres: consent cleans or purifies that to which the consent is given, and thereby insulates it from political critique as well as legal challenge. Questioning the value of that to which consent has been given is politically suspect—because it is unjustifiably paternalist, logically incoherent, or both."

"Totalitarianism no longer comes in the form of communism or fascism. It comes now from corporations. And these corporations fear those who think and write, those who speak out and form relationships freely. Individual freedom impedes their power and their profits. Our democracy, as Snowden I think has revealed, has become a fiction. The state, through elaborate forms of political theater, seeks to maintain this fiction to keep us passive. And if we wake up, the state will not shy away from draconian measures. The goal is complete subjugation, the iron rule of our corporations and our power elite."

"The United States ... celebrates rote vocational training and the singular, amoral skill of making money. It churns out stunted human products, lacking the capacity and vocabulary to challenge the assumptions and structures of the corporate state. It funnels them into a caste system of drones and systems managers. It transforms a democratic state into a feudal system of corporate masters and serfs."

"Bergelson likewise discusses the role played by consent in the transformation of private contracts into public contracts in the seventeenth and eighteenth centuries. She notes that whereas in the early modern period, consent was a catch all defense in penal legislation, “changes in the power of an individual to conenet to personal harm came in the seventeenth century. They were a natural consequence of the monopolization of the system of punishment by the state. While in the early ages of criminal justice the victim was the central figure in the prosecution and settlement of any non-public offense,in the normative and centralized juridical structure the victim became almost entirely excluded from the criminal process.” She continuied by noting that the right to consent was thus constrained, as the victims of crime became abstract concepts such as “public peace” or sovereingty."

"Capacity of adults with intellectual disabilities to consent to sexual relationships Sexual consent capacity criteria (1) knowledge of body parts, sexual relations, and sexual acts; (2) knowledge of the consequences of sexual relations, sexually transmitted diseases, and pregnancy; (3) understanding of appropriate sexual behavior and the context for it; (4) understanding that sexual contact must be voluntary; (5) ability to recognize potentially abusive situations; and (6) ability to show assertiveness in social and personal situations and to reject unwanted advances."

"…where a man does not engage in communicative sexuality, he acts either out of reckless disregard, or out of willful ignorance. For he cannot know, except through the practice of communicative sexuality, whether his partner has any sexual reason for continuing the encounter. And where she does not, he runs the risk of imposing on her what she is not willing to have. All that is needed, then, in order to provide women with legal protection from date rape is to make both reckless indifference and willful ignorance a sufficient condition of mens rea, and to make communicative sexuality the accepted norm of sex to which a reasonable woman would agree."

"Corporations are people, my friend … course they are!"

"The jurisdiction of the Court does not depend upon the existence of the ship, but upon the origin of the question to be decided, and the locality."

"Likewise, having consented to sex with someone once or even several times in the past doesn’t mean you’ve consented to sex with that person indefinitely. Consent is not like a physical permit that, once issued, we can save for use at a future date. The person who willingly and enthusiastically had sex with us last night might not want to have sex with us this morning and that’s their right and prerogative. The law is also very clear that a person can give their consent to one kind of sexual activity but not another in a single situation. For example, someone might consent to vaginal but not anal penetration, or they might consent to sex with a condom but not without one. Again, this is common sense."

"One major theme that runs throughout Bergelson's article is this tension between the ability to consent, which “is recognized in moral philosophy as a central manifestation of personhood and individual autonomy,” and the act of consent, which is “a waiver of rights.”"

"(TH: In Justice Stevens’ dissent in Citizens United, he pointed out that corporations in their modern form didn’t even exist when the Constitution was written in 1787 and got its first ten amendments in 1791, including the First which protects free speech)"

"[T]he relationship between rape laws, democratic theories of consent, and patriarchy has been a matter of concern to feminist political theorists for some time. These feminists have exposed the 'double speak' of social contract consent theory … [T]hey have detailed the ways in which the emphasis on consent relies on a masculine concept of the self as an autonomous, independent being. They have examined the ways in which this concept of self runs counter women's experiences of the self as a relational being with responsibility to/for others … [I]t prompts us to argue for the rule of consent in the context of a theory of justice where vulnerability rather than autonomy defines the integrity of the political subject.” **"

"The difficulty of dealing with Admiralty Reports by way of authority is, that there is no necessity in that Court that the Judge should, in the exposition of the grounds of his judgment, discriminate strictly between the proposition of law which is to be satisfied by all the facts of the case, and the rule of interpretation of the direct facts of maritime vicissitudes given in evidence, by which he desires to bind himself and his successors as to the inference of fact he and they ought, as a general rule, to draw from those facts."

"“In one sense of the word” observes Robert Lee Hales, “no labor is “involuntary"-not even that of a slave. It is performed through the voluntary muscular movements of the laborer, who chooses to perform it in order to avoid something worse. Obviously, the word is not used in the Thirteenth Amendment in this restricted sense.” Nat Turner, who has hanged in Virginia in 1831 after leading a bloody slave rebellion, would probably have agreed with Hegel that “if a man is a slave, his own will is responsible for his slavery, just as it is its will which is responsible if a people is subjugated. Hence the wrong of slavery lies at the door not simply of enslavers or conquerors but of the slaves and the conquered themselves.” But Hegel did not infer that slavery therefore was legitimate. If the ubiquity of consent in this sense is not to vitiate the thirteenth amendment altogether, the amendment must be understood as standing for the proposition that there are certain choices that a person should not find herself having to make: specifically, choices between submitting to servitude or denying a need (for example, the need for food, or to be free form pain) that almost all human beings find irresistible. That is why the courts should not give their imprimatur to choices made under such circumstances."

"Even when judges agree on the relevance of a past case to a present one, they may, and frequently do, disagree about how the applicable precedent should be read. Thus judges construct law’s own history in the process of deciding present cases. They do so through a complex genealogical operation that accords them enormous discretion, and yet allows them to claim that they are fully and completely bound by the past. In law “the past is primarily a source of authority”-if we interpret it correctly, it will tell us how to conduct ourselves now. History is not only a source of authority but of legitimacy.” Reading and decoding the past, arguing about its meaning, and shaping decisions as if they were the inexorable product of an uncontested history is the very stuff of law. Judges make history anew with each opinion, all the while proclaiming that they are simply discovering a past whose significance is, or should be, self-evident."

"Indeed the authority of legitimacy of a judicial decision is to some extent a product of its ability to cloth itself in the history of law, to plausibly claim that there is nothing innovative or new being done or said even while new departures are being undertaken. Alternatively, when judges make a radical departure from the past, the gravitational force of law’s history “compels” them to find a loophole, a gap in the seamless web of history, or to say that there are no applicable precedents, or that the applicable precedents are somehow less relevant than they might otherwise seem. In this sense law is always facing backward, engaged with the past, constructing majestic narratives of continuity with occasional flaws in the tapestry."

"Let us note but two examples of the use of precedent in the construction of a historical narrative that, in turn, works to supply authority and legitimacy. The first is found in “Planned Parenthood v. Casey”, the 1992 Supreme Court decision upholding, while limiting, abortion rights under the Amendment. In the now famous opinion by Justice O’Connor, Kennedy and Souter, those justices took pains to explain their own reservations about “Roe v. Wade”, whose “essential holding” their opinion in Casey was intended to reaffirm. “Some of us,” the justices noted, “find abortion offensive to our most basic principles of morality, but that cannot control our decision.” It could not do so if they were to uphold their duty to protect the “liberty of all” and to respect their obligation to “follow precedent.” This obligation flows from “the very concept of the rule of law,” which, in their view, “requires such continuity over time that a respect for precedent is, by definition, indispensable.” Yet in spite of this rather striking defense of the role of precedent in our legal system, O’Connor, Kennedy, and Souter went on, almost as if to take back what they had just said, to note that adherence to precedent was not “an inexorable command.” The decision whether to adhere to precedent was, in their view, always one that had to be guided by “prudential and pragmatic considerations,” including whether the rule developed by a prior case has proven to be unworkable, whether people have come justifiably to rely on it, and whether subsequently developed principles of law have rendered the prior rule a nullity. By taking this pragmatic and prudential approach to precedent the three justices constructed an historical narrative that made room for the possibility of change, of evolution. They wrote a history of constraint, yet also of possibility, rather than of an iron hand of the past inexorably determining present policy. They allowed themselves to be seen as “judging” a past that they themselves first had to interpret. Yet they acknowledged that the past created a presumption in favor of continuity and that in no case should a decision to overrule precedent, and in so doing to rewrite history, rest simply on a “belief that a prior case was wrongly decided."

"The most obvious example of the way law constructs and uses history is found in the doctrine of stare decisis and the practice of justifying present decisions in light of precedent. In the common-law tradition the past is supposed to govern the present. Like cases are to be treated alike. Precedent tells a judge to adhere to the decision in a previous “similar” case. As Shauer notes, an argument “from precedent . . . urges that a decision makers give weight to a particular result regardless of whether that decision maker believes it to be correct and regardless of whether that decision maker believes it valuable in any way to rely on that previous result.” In this understanding, adherence to precedent is a rule, according judges no judgmental discretion. There is, of course, another way of understanding how precedent works that accords judges greater interpretive possibility. Past decisions creates a presumption, but a presumption that can be, and sometimes is, rebutted. Yet both of these conceptions treat the past as discoverable and potentially constraining or authoritative. The judge researching precedent constructs a doctrinal history in the service of elucidating a present problem. These two different ways of thinking about precedent imply two different attitudes toward the past, as commander of the present and barrier to change, or as guide, suggesting paths, but mandating no particular way of being in the present. And beyond these different attitudes toward the past there are the difficulties of determining what counts as an applicable precedent as well as what a precedent stands for in the way of its legal meaning. Neither is self-generating. Analogies proliferate almost without limit. Judges read the relevance of past cases differently, and there are no metarules that govern such determinations of relevance. This is not to say that the search for relevance is a free-for-all. Conventions, habits, institutions, reasons all guide the judgment of what is relevant. Yet judges with different conceptions of their role adopt different standards of relevance as well as entirely different orientations toward the way the past should be used in law."

"An avidity to punish is always dangerous to liberty. It leads men to stretch, to misinterpret, and to misapply even the best of laws. He that would make his own liberty secure must guard even his enemy from oppression; for if he violates this duty he establishes a precedent that will reach to himself."

"What is today supported by precedents will hereafter become a precedent."

"“[T]he “Casey” majority presented perhaps the Court’s most extended discussion of the concept of precedent in this century” (81)"

"Ages, precedents, have long been accumulating undirected materials, America brings builders, and brings its own styles. The immortal poets of Asia and Europe have done their work and pass'd to other spheres, A work remains, the work of surpassing all they have done."

"As Morton Horwitz put it, “Casey was “unique in American constitutional history for its highly self-conscious discussion of the question of constitutional legitimacy” and for constructing a historical narrative to “provide a standard for determining when overruling precedent is appropriate.”"

"At each turning point, the justices argued, the Court had to resolve an “intensely divisive controversy” in such a way as to call “the contending sides of a national controversy to end their national division.” Again constructing a monumental history, the justices announced “The court is not asked to do this very often.” In these rare moments the Court has to stand firm; it has to defend a previously made “water shed decision” lest the Court’s own legitimacy be jeopardized. Here the Court writes a history that goes beyond a history of legal doctrine; it is a history that takes into account the social and political world in which it is portrayed as playing a decisive role. Adhering to precedent in such circumstances gives testimony to the power of principles to guide the nation. By imagining the possibility of departing from precedent, by treating precedent as a standard, not a rule, the justices are able rhetorically both to elevate the stakes in its present decision and marshal a narrative of the past to serve as a springboard for an explanation of why it is both wise and prudent to adhere to a decision about whose substantive judgment they had earlier expressed doubt. In the history that “Casey” tells, the Court faced a severe challenge; adhering to precedent presented the best, though not only, answer."

"Yet there is another image of precedent, of law’s history, in which the force of precedent compels judgment, in which precedent is treated as a rule for foreclosing the possibility of any other legitimate considerations. This image is perhaps best exemplified in Justice Marshall’s dissent in Payne v. Tennessee. In Payne the Supreme Court overruled its earlier decision in Botth v. Maryland in order to hold that the use of so-called victim impact statements in the sentencing phase of capital trials was not a violation of the eighth Amendment. The majority opinion written by Justice Rehnquist explained its overruling of Booth by invoking attitude toward precedent that would later emerge in Casey to justify adhering to precedent. As Rehnquist put it, “Adherence to precedent is ‘usually the wise policy.’” It is not, Rehnquist warned, a “mechanical formula” of adherence to the latest decision no matter how misguided. Marshall responded by conjuring a different relationship of law’s present to its past. He called for “fidelity” to precedent and claimed such fidelity was essential if courts were not to subject the people to the rule of “an arbitrary discretion.” In his view the Court has “a duty to stand by its own precedents.” Discharging that duty, against the ties of changing personnel on the Court or a changing political climate in the country, was Marshall claimed, necessary to a judiciary that sought to be a “source of impersonal and reasoned judgments.” The history that Marshall constructed is a history in which the past should rule the present, in which authority could and should be excavated from a continuous process of reading and rereading of the judiciary’s own products. It is a history of “fidelity,” of “duty” in the face of temptation. Failing to follow precedent would mean that “power, not reason,” would be the currency of judicial decision making."

"These two different attitudes toward precedent reveal an important part of the terrain of inquiry into law’s use and construction of history. They remind us of the complex and contingent interpretive possibilities of a legal order dedicated to a faithful respect for its past. Reasoning by analogy, distinguishing cases, identifying rules and their exceptions provide, in one sense, the very substance of legal reasoning. But in another they provide the resources with which law can live within the prison of history and yet escape it as needed. They provide but one indication of the fact that law’s history is almost always the subject of contest and interpretive dispute, that its' is a purposive and politicized attitude toward history. They also suggest that the interpretive touchstone for such contestation in the question of legitimacy."

"Judicial decisions on prisoners’ rights construct their own history, “founded on precedent, repeated, and gaining in force with each repetition.” Precedent, she argues, operates like ritual in that it gains authority the more it is tried and used. The law, in the histories it constructs and the memories cited there, “is a tomb of dead ideas.”"