Courts invoking legislative default can disguise abdication as adherence to stare decisis

Evidence

Would the following be an unfair paraphrase of the opinions? … “Fellow citizens, forgive us, while we shed these great crocodile tears. Because the Legislature has never seen fit to correct this one among the many other m stakes we have made, our hands are tied; and we are bound to pass the buck of responsiblity to that body. We who are sworn to ‘administer justice ’ tender to you as our explanation of 4hy this decision is ‘just’ the fact that another institution, not sworn to administer justice and having complete discretion whether to legislate or not to legislate, has seen ‘it, while occupying itself with the discharge of its manifold other responsibilities, not to change for the future this rule which we once mistakenly announced as a just rule of decision for controversies arising in the past.” — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 2628

Categorization

• STORYSTEM: The ‘crocodile tears’ institutional-voice parody — a court speaking as ‘forgive us, fellow citizens’ — is a striking rhetorical device worth studying as method in institutional writing.
• XREF: connects to: Congressional inaction following judicial construction can count as adoption of that construction — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 3273; Stare decisis binds only when judges would rather not follow precedent — G. Alan Tarr, Judicial Process and Judicial…, 2502; Courts construe legislative silence as deliberate intent, though silence admits other readings — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process: Basic Problems in…, 4205 (+2 more)

Broader Connections

• Stare decisis binds only when judges would rather not follow precedent #expands (0.80) — G. Alan Tarr, Judicial Process and Judicial…, 2502
• Stare decisis requires treating prior decisions as binding regardless of perceived correctness. #qualifies (0.80) — Frederick Schauer, Thinking Like a Lawyer, 106
• Courts construe legislative silence as deliberate intent, though silence admits other readings #complicates (0.78) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 4205
• Courts should rarely infer legislators intended to freeze a decision’s rule #corroborates (0.72) — Henry M. Hart, Jr. and Albert M. Sacks, The Legal Process, 3351