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63 U. Pitt. L. Rev. 487 (2001-2002)
Preemptive Opinions: The Secret History of Worcester v. Georgia and Dred Scott

handle is hein.journals/upitt63 and id is 497 raw text is: ARTICLES PREEMPTIVE OPINIONS: THE SECRET HISTORY OF WORCESTER v. GEORGIA AND DRED SCOTT Gerard N. Magliocca* Great cases like hard cases make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. Oliver Wendell Holmes, Jr.' Mark Twain once defined a classic as something nobody reads.2 That aphorism has little relevance in law, where students and scholars carefully examine well-worn opinions to illuminate core principles. But a few legal classics, such as Dred Scott, are often not read today because they stand as examples of a judicial system gone wrong. These cases are the haunted houses of constitutional law-abandoned yet frightening. Lawyers are taught to avoid the principles they represent, but spend little time examining how these decisions came about. For the profession, they are just mistakes that are best left buried and forgotten. This article begins developing a conceptual framework for these anti- canonical episodes by describing a pattern of preemptive opinions issued * Assistant Professor, Indiana University School of Law-Indianapolis. J.D., Yale Law School, 1998; B.A., Stanford University, 1995. Thanks to Bruce Ackerman, Brian Kalt, Richard Primus, Florence Roisman, Jim Torke, and George Wright for their helpful comments. 1. Northern Sec. Co. v. United States, 193 U.S. 197, 400 (1904) (Holmes, J., dissenting). 2. See MARKTWAIN, FoLoWINGTHEEQUATOR AND ANTI-IMPER1ALIST ESSAYS 241 (Oxford Univ. Press 1996) ('Classic.' A book which people praise and don't read.).

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