Visa slogan and Ralph Nader

[Scarberry, Mark]

I ran across this citation in the CILP (current index to legal
publications?) published by the U. of Washington Gallagher law library:



Smith, Raena L. Note. Commercial slogans: the First Amendment should

shield their use in campaign speech. 8 Wm. & Mary Bill of Rts. J. 241-271

(1999).

I haven't read it, but it seems right on point with Visa's attempt to
prevent Nader from using its slogan.

CILP is a great service; you can pick topics and journals about which you
want to learn and get an e mail "quickCILP" limited to those items each
week.

Here is the website's URL:

http://lib.law.washington.edu/cilp/scilp.html.

Last post for the day (I promise).

Mark S. Scarberry
Pepperdine University School of Law
mark.scarberry at pepperdine.edu <mailto:mark.scarberry at pepperdine.edu>

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at mail.law.ucla.edu]
Sent: Tuesday, August 22, 2000 11:30 AM
To: CONLAWPROF at listserv.ucla.edu
Subject: U.S. Court of Appeals for the Eight Circuit holds that nonprecede
ntial decisions are *unconstitutional*



        Potentially a tremendously practically significant ruling, given how
many court of appeals decisions are disposed of through nonprecedential
memoranda.


Anastasoff v. United States (8th Cir. Aug. 22) (Richard Arnold, J.),
http://caselaw.findlaw.com/data2/circs/8th/993917P.pdf:

. . .

We hold that the portion of Rule 28A(i) that declares that unpublished
opinions are not precedent is unconstitutional under Article III, because it
purports to confer on the federal courts a power that goes beyond the
"judicial."  The Rule provides:  "Unpublished opinions are not precedent and
parties generally should not cite them.  When relevant to establishing the
doctrines of res judicata, collateral estoppel, or the law of the case,
however, the parties may cite any unpublished opinion.  Parties may also
cite an unpublished opinion of this court if the opinion has persuasive
value on a material issue and no published opinion of this or another court
would serve as well."

Inherent in every judicial decision is a declaration and interpretation of a
general principle or rule of law.  Marbury v. Madison, 1 Cranch 137, 177-78
(1803).  This declaration of law is authoritative to the extent necessary
for the decision, and must be applied in subsequent cases to similarly
situated parties.  James B.  Beam Distilling Co.  v. Georgia, 501 U.S. 529,
544 (1991); Cohens v. Virginia, 6 Wheat.  264, 399 (1821).  These
principles, which form the doctrine of precedent, were well established and
well regarded at the time this nation was founded.  The Framers of the
Constitution considered these principles to derive from the nature of
judicial power, and intended that they would limit the judicial power
delegated to the courts by Article III of the Constitution.3 Accordingly, we
conclude that 8th Circuit Rule 28A(i), insofar as it would allow us to avoid
the precedential effect of our prior decisions, purports to expand the
judicial power beyond the bounds of Article III, and is therefore
unconstitutional.  That rule does not, therefore, free us from our duty to
follow this Court's decision in Christie. . . .

[Long historical discussion of the original meaning of the judicial power.]

To summarize, in the late eighteenth century, the doctrine of precedent was
well-established in legal practice (despite the absence of a reporting
system), regarded as an immemorial custom, and valued for its role in past
struggles for liberty.  The duty of courts to follow their prior decisions
was understood to derive from the nature of the judicial power itself and to
separate it from a dangerous union with the legislative power.  The
statements of the Framers indicate an understanding and acceptance of these
principles.  We conclude therefore that, as the Framers intended, the
doctrine of precedent limits the "judicial power" delegated to the courts in
Article III.

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