What in the world is “zombie precedent”?
The term “zombie precedent” is a fascinating concept in legal discourse, particularly in discussions surrounding judicial decisions that have outlived their original context or support. This intriguing phrase was popularized by Justice Antonin Scalia, who likened certain Supreme Court rulings to a ghoul that refuses to stay buried. Specifically, Scalia referred to the infamous Lemon test, which has haunted the court’s Establishment Clause jurisprudence for decades. The notion of a zombie precedent encapsulates the idea that some legal precedents can linger, re-emerging in legal arguments despite being largely discredited or abandoned. The Origins of Zombie … Read more