Friday, March 10, 2017

Chapter 18 (Chapter Summaries) "The Role of the Courts: Stare Decisis in Constitutional Cases and Under State Law” in Elements of Law and the United States Legal System

(Washington Monument Pix © Larry Catá Backer 2016)

I recently announced the forthcoming publication by Carolina Academic Press of my Elements of Law and the United States Legal System (ISBN: 978-1-61163-927-8 • e-ISBN: 978-1-61163-984-1).

The work made sense as a century of legalization (here and here) and judicialization (here and here) forces more and more people worldwide to bump up against aspects of aspects of the U.S: legal system.  The system is a complex amalgamation of distinct approaches to legalization, and the mechanics of its implementation, that  tends to be mystifying to everyone, even individuals trained in law elsewhere. Most people tend to be hard pressed to explain the U.S. legal system either to non-lawyers or to foreigners, even sophisticated foreign lawyers or jurists, or for that matter to each other. Most would find it difficult unravel the distinct strands of law in the United States, each of which deeply embedded within their own internally coherent systems of generation, interpretation and application. The object of the book is to make the elements of law within the U.S. legal system more accessible and easier to invoke.

This set of posts provide interested readers with a more detailed description-summary of each chapter along with teaching objectives. After these descriptions I will circulate a chapter by chapter based draft Teacher's Manual. Comments welcome for all. 

All contents posted on line may be accessed here:

Summary book organization and the third of the three chapters of Part V--The Role of the Courts: Stare Decisis in Constitutional Cases and Under State Law, Chapter 18 Summary follows. This concludes the work.  Future posts will include Teaching Notes for Each Chapter. Stay tuned!

The work is divided into three parts and a historical preface.  The Preface traces the origins of the materials and its objectives.  It suggests as well the challenges of teaching normative or framing concepts around a profession based on the training in technique; in effect the book seeks to expose the underlying normative structures and patterns well embedded within the techniques that tend to center the study  of law and legal subjects. Part I: What is Law? An Introduction,  is divided into two chapters.  Chapter 1 sets out a detailed roadmap for the materials built around an introductory problem that highlights the book's major themes. Chapter 2 then introduces the principal vocabulary, institutions and forms, starting with the issue of the connection between law, justice and the state. Part II: U.S. Law: System and Sub-Systems (Chapters 3-7), then focuses on the principal components that together make up the U.S. legal system. Its five chapters each focus on three forms of law sub-systems.  The first includes law articulated by the courts--common law and equity.  The second touches on law articulated by legislatures--statutes and administrative regulations. The third focuses on emerging systems of governance beyond the state--private regulation, hybrid public-private regulation and social norms. Part III: Hierarchies of Law and Governance: The Relationship Between People, Law, and Government moves from the study of the specific characteristics of legal subsystems to their relationship to government. It speaks to the governmentalization of law. Its four chapters first consider the fundamental theories that tie law to the government, the role of rule of law concepts, the development of hierarchies of law within the domestic legal order of the United States and then the relationship of domestic to international law. Part IV: Institutional Architecture of Law and Governance: The Law of Government of the United States then considers the legal rules through which governmental regulatory authority may be exercised. If Part III spoke to the issue of the governmentalization of law, Part IV touches on the legalization of government. Its four chapters considers the fundamental principles of separation of powers and checks and balances, the constraining of administrative discretion, popular law making through initiative and referendum, and the legal structures of federalism. Part V: The Role of the Courts in the Application of Law: Judicial Review, Methodologies of Interpretation, and Legitimacy closes the circle by bringing the focus back to the courts and their engagement with law. The first of its three chapters touches on the doctrine of judicial review and the legalization of the authority to interpret and apply law beyond common law. The second of its chapters then considers the techniques of judicial interpretation and their relationship to judicial legitimacy.  The last of the chapters then considers the binding nature of judicial opinion, especially the legal effect of judicial decisions interpreting statute.


Chapter 18. 
The Role of the Courts: Stare Decisis in Constitutional Cases and Under State Law
A. Introduction

B. Problem 18
--New York Telephone Co. v. Communications Workers of America Local 1100, AFL-CIO District 1
C. The Role of the Courts: Stare Decisis in Constitutional Cases and Under State Law
--Auto Equity Sales, Inc. v. Superior Court
--Planned Parenthood v. Casey
--Notes and Questions
D. Learning Objectives


A. Introduction

In this Part V, the student has been considering in more detail the role of the judiciary in the process of producing, administering and applying law. The judiciary serves as both the mediating force between law and the state; but in the U.S. legal system it also serves as the principle administrative mechanism for the application of law that is not the product of legislation, or where delegated through statute, of administrative regulation. With respect to the relationship of the judiciary to statutes (including constitutions), and administrative regulations, the student has learned that in the U.S. legal system, the judiciary has claimed an authority both to interpret statute (and constitution) and to apply them in disputes brought before them. Additionally, they also asserted a power—as inherent in the judicial authority conveyed to the judges under the federal constitution—to void statutes that exceed the authority of a government to enact them. The character of that authority remains contested.

The extent of the authority of judicial glosses of text thus provides a gateway to a critical issue: to what extent are the court’s interpretation authoritative? For the judiciary, the aggregation of judicial glosses on statutory (or constitutional) text form an inseparable part of that text. For others, the authority of judicial glosses of statutory (regulatory or constitutional) text is at its strongest with respect to the dispute resolved through an interpretation, and otherwise persuasive. But for judges applying text, the question is somewhat different. The President or a Governor might be free to assert an authority to interpret and apply text as they see fit—at least to the extent of their constitutional authority. But when that authority is questioned, or when another dispute comes before a court that requires statutory interpretation as a crucial element of decision, to what extent is a judge bound by the prior interpretations of other judges and other courts?

That issue, then, goes to the problem of the legitimacy of the courts as the principal instrument for the application of law, and the extent of the authority of their pronouncement. It also touches on the relationship between the law and the instrumentalities of state that are essential to the authoritative development of the meaning of legal text and its application in concrete disputes. To that end, the courts have developed and administer a law of judicial authority—stare decisis—that is binding within and an essential function, of the judicial role in government. The role of stare decisis in interpretation, takes three forms. The first involves the obligations of lower courts to apply the holding of superior courts within a single judicial system. Must the federal district courts follow the decisions of federal courts of appeal; must they follow only those decisions of federal appellate courts in the appellate district to which they belong? The second involves the obligation of courts in one judicial system to apply the holdings of courts in other systems. Must the federal courts follow the decisions of state courts; must state courts follow decisions of federal courts; do either federal or state courts have an obligation to apply the interpretation of international tribunals? The third involves the obligations of courts to follow their own prior interpretations. Must the Supreme Court apply its own holdings to cases it considers; may a court hear a case “fresh” without the obligation do apply the rules it has announced in prior cases; does the answer depend on whether the issue to be decided is a matter of statutory, case law or constitutional interpretation?

We have been considering the central role of courts in the application of law and judicial approaches to statutory interpretation, including its authority to determine that legislative activity (and executive as well e.g., Steel Seizure Case) is beyond the authority of the legislature and thus inapplicable by the courts to resolve disputes brought before them. We have also considered the methodologies courts have used to construe statutes, especially in the face of ambiguity of meaning. Central to that discussion was the underlying principle of judicial action that preserves the legitimacy of the judicial function. The debates around the value of such methodologies―from the canons of construction to the use of legislative history, from the primacy of formalism and text based analysis as deferential to the legislative function to the primacy of functionalism in deference to the objective of legislative action―all touch on the issue of the legitimacy of judicial actions in the context of the central function of the judiciary, to resolve specific disputes brought to them.

But we early learned that central to the project of legitimacy of law is consistency and predictability. Recall the Institute’s notion of justice and law: “Justice is the set and constant purpose which gives to every man his due . . . The precepts of the law are these: to live honestly, to injure no one, and to give every man his due.” [Institutes, Book I, Justice and Law]. Where the courts assert a power to interpret and implement law (including statutory and constitutional law), the question arises―how do courts ensure predictability and consistency in their reading and application of the law? Put differently, how do judges protect the coherence of law? And further, how do they accomplish this task in unison, that is, as a body of judges, rather than as individuals?

In a civil law system, in its pristine and theoretical extreme case traditional forms, the answer to these questions rest on the institutional integrity of the codes of law that have been crafted through the legislature. The answer to every question may be found in or deduced from the code, and a fair reading of the code will produce the same or similar results in similar cases without the need to rely on previous efforts. To the extent courts engage in gap filling efforts, those also, at its limit should also be readily ascertained with certainty and predictability of every curt considering the issue. To the extent cases are considered, their value is persuasive in jurisdictions with a common law tradition and without a history of law codes occupy fully the field of law, though this is changing in contemporary civil law systems.[1]

In common law systems, the answer also must be institutional and structural. But in this case it is grounded on the use and value of cases beyond the decision itself, and beyond the parties to them, that is with the structures around which the precedential value of cases are constructed. In other words, judicial systems are institutionally constructed through their own decisions. The rules for determining when such prior decisions may be considered, must be considered, or may be ignored, rejected or their application expanded or contracted, serves as the basis for an institutional assurance of stability and certainty in the construction and application of “law” by the courts, as an institutional actor, rather than as the aggregate of individualistic and unconstrained discretionary decisions by people merely because they have been accorded the title of “judge.” This, then, serves as the method by which common law and civil law judges both serve the same functional ends. The old idealized civil law judge through the application of the code by deploying the methods and logic of interpretation that should lead to the same end result in all similar cases, the idealized common law judge through the application of prior case law (along with statute or Constitution when applicable) by deploying these to produce the same end result in similar cases. Thus, all of this in the service both of institutional coherence and in the construction of a coherent legal framework that all stakeholders can rely on for producing substantially similar results under substantially similar circumstances; and thus an essence of rule of law.

At the heart of the rule structures of “precedent” is the doctrine of stare decisis (almost literally from the Latin, “let the decision stand”), which encapsulates a rule of binding precedent, whose contours we consider briefly with these readings extracted from recent cases. In this form, common law can acquire an institutional form and stability that may equal that of civil law codes. The accumulated application of case law to the resolution of disputes creates a thick web of articulation of legal standards and of the form and effect of the application of these substantive standards that produces a solidity to law. That solidity is retained through string political and ideological work―which is in turn focused on the training of lawyers and judges and the maintenance of a common culture and mission. This was most highly visible in the 17th century in England:
Corwin well recounts this idea in action in the famous confrontation between Coke and James I at Hampton Court on November 10, 1608, in which the judges of the Realm sought to resist the notion that James, as King, had authority to decide cases at Common Law in his own person (Corwin 1955, 38-39). Responding to the idea that reason alone was sufficient to apply the law, Coke responded that “causes which concern the life, or inheritance or goods, or fortunes of his subjects, are not to be decided by natural reason, but by the artificial reason and judgment of the law which law is an act which requires long study and experience before a man can attain to the cognizance of it” [Corwin 1955, 38– 39].

Those notions of autonomy, self-referencing based on constant communication through cases among a separate class of actors (judges and lawyers) continue to serve to preserve systemic integrity. Indeed, one can understand a principle function of the law school as a site where the student is not merely exposed to a cook book of cases and trained in the mere application of cases (the lawyer’s “craft”) but is also socialized into the culture of the lawyer/judge, becoming a cadre in a group whose loyalty to “law” is taught to be expressed in particular ways. Yet stare decisis, to the extent it applies to the construction of statutes and constitutions, may take the role of the judge beyond judging and into the realm of legislation. The very process of providing coherence by requiring application of prior interpretation of statutes and constitution, may well give legislative value to these decisions in ways that may sometimes overtake the law itself. There are many areas of statutory law where judicial glosses of statutes are far more important to its application than the text of the statute itself. On the one hand, this does nothing more than permit coherence and legal certainty in the application of law to future disputes. On the other hand, where judicial precedent is treated as equally binding to the underlying statute or constitution it appears that judges may be making law by bypassing the legislature (or the people). Of course both arguments, taken to extreme, are silly. But drawing the lines within the premises of our system has been quite difficult.

Indeed, that difficulty is compounded as both the nature of precedent and the understanding of stare decisis has changed profoundly over the course of the centuries, though its object has not, especially after the middle of the 20th century.[2] But these changes, like common law itself, necessarily reflect the changing nature of the customs and traditions from which it draws its essence and legitimacy within common law culture. For all that, and particularly in constitutional law cases, the doctrine and scope of stare decisis remains highly controversial, and all the more so since the 1980s when the great ideological rifts about the nature and role of judging, and of judicial decisions[3] began to take current form.

We start first by unpacking the notions bundled with stare decisis, by considering what I will call: (1) vertical precedent (stare decisis); (2) horizontal precedent; and (3) self-binding precedent (the binding nature of a court’s own prior precedent). The basic rules are simple enough, though complicated by the federal organization of the U.S., and the proliferation of governments, general and state, each with its own judicial system, autonomous but interrelated. We end by considering the differences in the authority of precedent in constitutional cases, that place where law and politics meet.
Learning Objectives.
(1) The student should have a basic understanding of the concept of stare decisis and its role in United States’ legal system.

(2) The student should have a basic understanding of the terms vertical precedent, horizontal precedent, self-binding precedent.

(3) The student should understand the terms precedent and binding precedent and its significance in the United States legal system.

(4) The student should have a basic understanding of how courts in the United State legal system follow their own decisions, decisions from other jurisdictions, decisions from higher courts in their same jurisdiction, and decisions from the United States Supreme Court.

(5) The student should have a basic understanding of the contours of precedent at the state and federal legal through a reading of Planned Parenthood v. Casey (federal) and Auto Equity Sales, Inc. v. Superior Court, (state).

(6) The student should be able to apply the concepts in this chapter by working through a problem regarding stare decisis and precedent.

[1] See Vincy Fon, and Francesco Parisi, “Judicial Precedents in Civil Law Systems: A Dynamic Analysis. International Review of Law and Economics, Forthcoming,” George Mason Law & Economics Research Paper No. 04-15; Minnesota Legal Studies Research Paper No. 07-19, available; see generally, John Henry Merryman, Rogelio Pérez Perdomo, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America (3rd ed., Stanford University Press, 2007): 34–48.

[2] See James W. Moore and Robert S. Oglebay, “The Supreme Court, Stare Decisis and Law of the Case,” Texas Law Review 21 (1943): 514.

[3] Larry Cata Backer, Elements of Law 3.0 Notes and Reading IV-C (The Role of the Courts: How Courts Engage With Law: Theories of Judicial Interpretation), Law at the End of the Day, November 3, 2013,

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