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Contemporary constitutional law, in its quest for judicial restraint, has primarily focused on "the how" of judging - what interpretive methods will constrain the decisionmaker? This Article, by contrast, focuses on the "when"- if there are reasons to think that today's judicial decisions might later prove to be problematic, then are there methods that alter the timing of those decisions' impact to produce better outcomes? This Article outlines one new method for judicial decisionmaking in the post-9/11 world. Informed by pervasive legislative practices, I contend that the Supreme Court should prospectively declare that some of its national security opinions will sunset, meaning that they will lapse as binding precedent.


Vol. 79 Notre Dame Law Review, Page 1237 (2004). Reprinted with permission. © Notre Dame Law Review, University of Notre Dame.

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79 Notre Dame L. Rev. 1237-1256 (2004)