Verification Re: your understanding of precedent
dbarron at LAW.HARVARD.EDU
Tue Jul 18 17:46:50 PDT 2000
Why a '"federal statute" also? Congress' may intend for majority
asessments of a statute's meaning to be controlling. If that's the case,
then what warrant does a judge have to adhere to a dissentng interpretation
of the statute? fidelity to what?
Of course, congress's intention on this score may not be express, but does
it make sense to have a background default assumption that congress never
intends majorty interpretations to be binding on all judges after they are
issued? And, in any event, what are we to make of severability analysis?
if it's right to conclude that congress intends for the entire statute to
be without force and effect upon a court's judgment that the statute is
invalid in certain critical respects, why should a dissenting judge
continue to conclude that the statute has force and effect notwithstanding
a judgment by a court to the contrary? l could understand a dissenting
judge reaching that conclusion if he independently disagreed with the
majority's severability analysis, but if the judge believes only that the
court is wrong on the substantive constitutional intepretation, but
concludes that it is right on the severability analysis assuming its
substsantive judgment to be correct, then why should that dissenting judge
not then consider himself to be bound to treat the statute as without force
At 03:16 PM 07/18/2000 -0500, you wrote:
>I agree with Doug Laycock and Leslie Goldstein, that "the law" is
>not necessarily the judiciary's most recent interpretation of it.
>Indeed, I would go considerably further:
>After having taken into account his or her own interpretive fallibility,
>given due, careful consideration to the views of others, and taken
>measure of the level of his or her own certainty, why should a judge
>who is fully persuaded that a precedent decision constitutes an
>incorrect interpretation of the Constitution (*or* of a federal statute
>or treaty), *ever* deliberately adhere to what he or she is convinced
>is an incorrect exposition of "the law" and decide a case wrongly,
>in accordance with that incorrect exposition? Is not doing so a
>violation of the judge's oath (under the precise reasoning to this
>effect of Marbury v. Madison (which I cite because it is persuasive
>and well-reasoned, not because it is binding!)?). Is it not
>*unconstitutional* to prefer an erroneous interpretation of the
>Constitution, made by whatever authority, to the Constitution itself?
> Is that not to give the act of the faithless agent preference over the
>act of the principal (again, under the reasoning of Marbury)?
>Perhaps the Spaeth & Segal study should be redone: The test of a
>judge's commitment to the "rule of law" (as distinguished from the
>rule of judicial precedent) is his or her willingness to *disregard*
>(under the circumstances noted above) precedent that the judge is
>convinced is wrong!?! (And, yes, I would extend this principle to
>lower court judges, too!)
>Michael Stokes Paulsen
>University of Minnesota Law School
> Date sent: Tue, 18 Jul 2000 11:06:26 -0500
>Send reply to: Discussion list for con law professors
><CONLAWPROF at listserv.ucla.edu>
>From: Douglas Laycock <dlaycock at MAIL.LAW.UTEXAS.EDU>
>Subject: Re: Verification Re: your understanding of precedent
>To: CONLAWPROF at listserv.ucla.edu
>> Justice Harlan's announced rule was to adhere to his own views
>> until the
>> end of the Term, and then comply with all the new precedents beginning
>> the following Term. He said that in an opinion sometime in the late
>> sixties. Frank Easterbrook's had some very insightful things to say
>> about this. Ways of Criticizing the Court, Harv. L. Rev. (1982).
>> I think even on the day after a decision, it is a judgment
>> call whether to
>> accept it, accept it but interpret it as narrowly as possible, or
>> refuse to give it any credence whatever. I have not thought this
>> through, but I am inclined to the view that the justices are too quick
>> to deny all credence to cases they lose. Some issues are important
>> enough to justify the costs of that; some are not.
>> The Santa Fe briefs illustrate the costs: both sides realized
>> they were
>> arguing to a court with only two members -- the other seven votes were
>> locked in. But neither side could write off its base or offend the
>> seven; both sides had to argue four different standards -- coercion,
>> endorsement, equal access, and Lemon. On the other hand, it is easy
>> to understand why justices are reluctant to concede on such
>> fundamental choices.
>> However they ought to treat new precedent, this is a lousy
>> test of
>> personal preference v. rule of law. If I am convinced on Monday that
>> the Constitution and laws require X, and five justices issue a wholly
>> unconvincing opinion announcing not X, then it is not clear why my
>> adherence to X is just a personal preference -- it is also my best
>> understanding of the law. The Spaeth and Segal test assumes that the
>> last-in-time pronouncement trumps all other sources of law. One can
>> be committed to the rule of law and even to substantial weight for
>> stare decisis without being committed to that.
>> At 04:51 PM 07/17/2000 -0700, you wrote:
>> >I'm finishing a review of a book by two political scientists, Harold
>> >Spaeth and Jeff Segal, called Majority Rule or Minority Will. It's a
>> >test of whether Supreme Court justices are influenced by law; their
>> >specific question is whether justices feel free to ignore precedents
>> >with which they disagree.
>> >In their research design they ask whether justices who dissent from a
>> >precedent-setting case later vote along with the precedent (in
>> >subsequent "progeny" cases) or whether they continue to oppose the
>> >precedent. Not surprisingly they find that the original dissenters
>> >continue to resist the precedent, and they infer that this is
>> >evidence that justices are not following the law but instead are
>> >voting on the basis of their personal preferences.
>> >Since Spaeth and Segal intend this research to be of interest to law
>> >professors (who may mistakenly believe that justices care about
>> >precedent), I wanted to just see whether anyone on this list
>> >considers this a persuasive test of the influence of precedent.
>> >Obviously, for the idea of precedent to be meaningful, judges have to
>> >be willing to abide by precedent with which they disagree. But does
>> >anyone think that the obligation to obey precedent extends to judges
>> >who are actively resisting newly established precedents (from which
>> >they originally dissented)? Do any of you consider this behavior
>> >either surprising or essentially anti-legal?
>> >Thanks in advance for your thoughts.
>> >Howard Gillman
>> >USC Political Science
>> Douglas Laycock
>> University of Texas Law School
>> 727 E. Dean Keeton St.
>> Austin, TX 78705
>> 512-232-1341 (phone)
>> 512-471-6988 (fax)
>> dlaycock at mail.law.utexas.edu
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