But fairness is almost irrelevant in the face of such obvious unworkability
. By all means, universities can arbitrarily claim to have "standardised" degree status (how?), but since the only test that matters is popular consciousness and employer interpretation, it won't change a thing.
This application of the interstate-intrastate distinction not only resonated directly with Taney's earlier dual federalism pro-slavery decisions, but exemplified again the real bite as well as the unworkability
of that distinction, demonstrating why, to be effective, federal power over commerce must often reach inside states according to its "among" meaning without reliance on commerce extending doctrines.
Cooptation: bring judges Insulation
of the Mayo/Alice approach to eligible subject matter and
to point out the unworkability
of the "conventional witness"
Closely related to the doctrine's lack of strong legal foundation is the third stare decisis criterion: unworkability
. Courts have had difficulty applying qualified immunity consistently, as figuring out what a reasonable officer "should have known" and at what level of specificity a legal principle has been established can devolve into an almost metaphysical exercise.
Are we supposed to believe that D has given us an unworkable model of prophecy in its effort to correct the unworkability
His judgment drew upon past Canadian cases that had discussed factors such as the presence of actual developments in the law undermining the validity of a past precedent, recognition that a precedent generates uncertainty in a manner contrary to the very values of stare decisis, recognition that a precedent was inconsistent with prior precedents, or recognition of clear problems with a precedent in terms of unworkability
, inconsistency with principle, or unfairness in operation.
of the pure scintilla principle may provide a lesson for the complete-proof principle of the majority in IMM.
The patent unworkability
of such a scheme highlights the importance of retaining a forum for dialogue among the branches of governance.
(252) Nor was the Austin rule mired in procedural unworkability
. As a result, second-best stare decisis would have counseled the retention of Austin even if a majority of justices believed it was wrong on the merits.
For commentary on the unworkability
of Usery, see MarkTushnet, Why the Supreme Court Overruled National League of Cities, 47 Vand.