Is Marshall Field v. Clark Still Good Law?
Does Marshall Field necessarily doom the Deficit Reduction Act challenges? Perhaps not. For starters, there is a significant chance the Supreme Court would not reaffirm Marshall Field today. In Planned Parenthood of Southeastern Pennsylvania v. Casey, the Supreme Court described some of the “special reason[s] over and above the belief that [a] prior case was wrongly decided” that may overcome stare decisis considerations and justify overruling a precedent. (In an earlier column, my brother, Akhil Reed Amar, and I explained why we have problems with the Casey “special reasons” approach, but for present purposes I will simply apply the Casey framework, since that is the framework that the Court itself seems inclined to apply.) Two “special” reasons Casey said might justify overruling past precedent are: (1) a change in the factual foundation or factual understanding that underlay the earlier ruling; and (2) subsequent rulings by the Court that render the earlier ruling doctrinally incohe
