Commercial Litigation and Arbitration

Three Good Quotes When You Have to Change Position or Ask a Judge to

  1. “Justice Frankfurter once remarked that, ‘Wisdom too often never comes, and so one ought not to reject it merely because it comes late.’  Henslee v. Union Planters Nat’l Bank & Trust Co., 355 U.S. 595, 600 (Frankfurter, J., dissenting).  This is one of those moments.”  Marsden v. Select Medical Corp., 2007 U.S. Dist. LEXIS 9893 (E.D. Pa. Feb. 6, 2007).
  2. I see no reason why I should be consciously wrong today because I was unconsciously wrong yesterday.” Massachusetts v. United States, 333 U. S. 611, 639-640, 68 S. Ct. 747, 92 L. Ed. 968, 1948-1 C.B. 117 (1948) (Jackson, J., dissenting); quoted in Burwell v. Hobby Lobby Stores, Inc., 573 U. S. ___, ___, n. 11, 134 S. Ct. 2751, 189 L. Ed. 2d 675, 722, n. 11(2014) (Ginsburg, J., dissenting), and Dart Cherokee Basin Operating Co., LLC v. Owens, 2014 U.S. LEXIS 8435 (U.S. Dec. 15, 2014) (Scalia, J., dissenting).
  3. Califano v. Boles, 443 U.S. 282, 295 n. 12 (1979), quoting Justice Jackson's concurrence in McGrath v. Kristensen, 340 U.S. 162, 177-178 (1950):

Precedent, however, is not lacking for ways by which a judge may recede from a prior opinion that has proven untenable and perhaps misled others. See Chief Justice Taney, License Cases, 5 How. 504, recanting views he had pressed upon the Court as Attorney General of Maryland in Brown v. Maryland, 12 Wheat. 419. Baron Bramwell extricated himself from a somewhat similar embarrassment by saying, ‘The matter does not appear to me now as it appears to have appeared to me then.’ Andrews v. Styrap, 26 L. T. R. (N. S.) 704, 706. And Mr. Justice Story, accounting for his contradiction of his own former opinion, quite properly put the matter: 'My own error, however, can furnish no ground for its being adopted by this Court . . . .' United States v. Gooding, 12 Wheat. 460, 478. . . . If there are other ways of gracefully and good-naturedly surrendering former views to a better considered position, I invoke them all."

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