De Farco

From typo to coinage, Scott Lemieux defines a "de farco overruling" of a precedent as "A case, such as Carhart II, in which the Court makes a farcically trivial or specious distinction in order to avoid formally overruling a precedent."

Comments

Once instead of "thrift store" I said "thriftcore" and my friends thought thriftcore was hilarious in that context. I didn't correct myself. This was in Seattle in 1993.

Posted by chris | July 1, 2007 11:05 AM

In point of fact, Brown v. Board of Education did not overrule Plessy v. Ferguson. It either "distinguished" or "questioned" it. (I can't remember which just right now.) Plessy, I distinctly believe, has never been formally overruled.

Frankly, IMHO, so-called legal reasoning more closely resembles verbal juggling than principled logic - and this is just as true whether it is the liberal ox or the conservative ox that is being gored.

One problem for the Supreme Court: it actually hears very few cases - about 50 or so, I believe. Of course the lower courts, which do the grunt work, can play the same games with the Roberts court's decisions that it is playing with prior precedent.

And the real scandal occurs at the trial level, during pretrial discovery, where district judges reign largely unchecked. Discovery is lengthy and expensive - so judges - through discovery motions - can economically bleed parties they dislike white without actually ruling on the merits of their claims.

Posted by Duncan Kinder | July 1, 2007 1:59 PM

Duncan: On *Brown* not formally overruling *Plessy*, see my post at http://groups.google.com/group/soc.history.what-if/msg/e9c15471cadde2e6
One of the per curiam "see Brown" cases I mention there dealt with public transportation, and *that* was the case that actually overruled *Plessy* (though possibly without saying so--"sub silentio").

Posted by David T | July 1, 2007 2:22 PM