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21 Tex. L. Rev. 514 (1942-1943)
Supreme Court, Stare Decisis and Law of the Case

handle is hein.journals/tlr21 and id is 537 raw text is: THE SUPREME COURT, STARE DECISIS AND LAW OF THE CASE By JAMES WM. MooRE* and ROBERT STEPHEN OGLEBAY- Eisner v. Macomber still lives. Recently the Court left intact, at least momentarily, its doctrine that Congress lacks power under the Sixteenth Amendment to levy an income tax upon a stock dividend which does not change the proportionate interests of the shareholder. The Court refused to rip out of the past seven years of tax adminis- tration a principle of law on which both Government and taxpayers have acted. But the Williaris case ripped out the thirty-seven years of divorce-full-faith-and-credit law that Haddock v. Haddock had ushered in. That ill-starred Jensen decision limiting states in applying their compensation laws to maritime employees survives because the results of ripping out were thought to be worse than temporary ac- commodation or appeasement. There has been reaffirmance of prec- edent, antedating the Federal Rules, to the effect that an order setting certain issues down for non-jury trial ahead of issues to be tried to a court and jury is an interlocutory injunction. No ripping out here, either. Rather we find the Court building shelves in the new procedure to book the philosophies of Coke and Ellesmere. Less than two years after Justice Frankfurter authored the Flag Salute opinion, with Justice Stone a lone dissenter, a specially constituted district court refuses it obedience. This court thought that the Supreme Court had already splintered the opinion's validity. An appeal places the matter with the latter court. Foolhardy as prophecy is, we venture that Justice Stone's dissent will become the majority with about as much numerical sup- port as Frankfurter mustered a few scant years ago. These are happenings at the current 1942 Term of Court., Should precedent be ripped out? irreverently, sometimes joyously? when?, and, *B.S., Montana State College, J.D., University of Chicago, J.S.D., Yale Univer- sity; Associate Professor of Law, Yale University School of Law. -B.S., J.D, Indiana University. 'Helvering v. Griffiths, 11 U.S. Law Week 4199 (1943) left Eisner v. Macom- ber, 252 U.S. 189 (1920) intact. See nn. 85-87, infra, and text accompanying. Williams v. North Carolina, 63 S.Ct. 207 (1942) overruled Haddock v. Haddock, 201 U.S. 562 (1906), and held that a divorce decree rendered by a state wherein the plaintiff was bona fidely domiciled must be given full faith and credit in all states, including the state of matrimonial domicile. Davis v. Department of

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