Thorstenn v. Barnard

A. LEON HIGGINBOTHAM, Jr., Circuit Judge,

dissenting, with whom

WEIS, GREENBERG, HUTCHINSON and SCIRICA, Circuit Judges, join:

I believe that the majority’s reliance on Frazier v. Heebe, — U.S. —, 107 S.Ct. 2607, 96 L.Ed.2d 557 (1987), is flawed. More than two centuries ago Lord Mansfield, perhaps England’s wisest jurist,1 stressed that

[precedents only serve to illustrate principles, and to give them a fixed authority. But the law ..., exclusive of positive law enacted by statute, depends upon principles, and these principles run through all the cases according as the particular circumstances of…