If I may be permitted to raise a minor quibble with Scott's point:
(1) A demonstration of methodological inconsistency is always difficult.
Because judges do not articulate their full theory of the law, the methodology
of a particular judge must always be inferred. When trying to prove a charge
It seems to me that the question for originalists is WHETHER a judicial
decision is a superceding text adopted through a legitimate process. This
question has at least two dimensions, one functional and the other normative.
The functional question is whether precedents are to be treated as
I've written up my take on the claim preclusion issue:
http://lsolum.blogspot.com/2003_09_01_lsolum_archive.html#106368380098352243
My bottom line is that the Ninth Circuit wrong about the same claim
subissue, but right about the new parties not being bound.
