Some of you may remember Senator Arlen Specter asserting the existence of what he called "Super-Precedent" during his questioning of John Roberts. Now two highly-regarded academics, Dan Farber (UC Berkeley) and Michael Gerhardt (UNC) have defended the idea that some precedents are so foundational or "bedrock" that they, in effect, supersede the written constitution and cannot be reversed.

They presented their papers at the 2005 Minnesota Law Review Lindquist & Vennum Symposium entitled, "The Future of the Supreme Court: Institutional Reform and Beyond," and I presented a critical reply. While our papers are not yet available on line, you can click here to watch us discuss the idea of so-called Super-Precedent via Real Video in the webcast of the conference. Each talk lasts 20 minutes. (My response begins at 48:00 minutes on the webcast.)