Verification Re: your understanding of precedent

Tue Jul 18 19:08:21 PDT 2000

In making the point that whether following precedent is part of the
legal value of "fidelity" depends upon what one's theory of
consitutional interpretation is (e.g., originalist vs. "living", and so
forth), Tom Grey's post (and Sandy Levinson's concurrence) puts its
finger on the flaw in the Spaeth and Segal methodology.  Contrary to
what S&S seem to think, the role of precedent is endogenous to one's
legal theory; it is not a constraint that somehow stands outside the law
and identifies one of the boundaries between law and non-law.

Michael Stokes Paulsen post gives voice to something close to an
arch-originalist view.  From his formulation of the precedent-defying
judge's frame of mind, I take it that his judge determines whether a
precedent comports with the constitution by employing a line of
reasoning that does not iself rely on precedent.  More evolutionary
theories of interpretation might conclude that precedent plays a more
foundational role in constitutional reasoning, in that inconsistency
with precedent counts as an argument against what might otherwise be
one's opinion about the correct outcome in a case.  A judge who decides
a contemporary decision in light of an earlier precedent differently
than he/she would have decided it without the precedent is not
necessarily behaving unconstitutionally, violating his/her oath.  I am
distinguishing two things here: (1) the belief that the first case is
wrong (that is, I wouldn't have decided it that way); (2) the belief
that I am behaving unconstitutionally by following it.  Whether (2)
follows from (1) depends upon your theory of constitutional
interpretation and the role of precedent in it, which is where I take it
Tom Grey's three legal values play an important role.    I think this is
consistent with Jim Roger's post, although I am not sure.

The problem with Speath and Segal is that, in my view, either the arch
originalist or the evolutionist, or other views, fall within a class of
possible approaches to legal decision making.(Michael Stokes Paulsen
will perhaps disagree, seeing the evolutionist as behaving lawlessly).
Thus their reliance on how a judge reacts to precedent as a test of
whether or not the judge is behaving legally is conceptually flawed.

About statutes, I think judicial invalidation creates a "fact about the
world" that all judges ought to recognize, namely that the statute no
longer has the force and effect of law.  That's Marbury, too: the Court
speaks authoritatively through its majority; the majority determines
that the statute is invalid; because the Court says what the law is, the
statute is no longer the law.  I am not sure, however, how much this
point is worth, although it is worth at least this: Scalia could not
properly decide a case based on 3501 unless he believed that 3501
expressed a valid statement of what the scope of 5th amendment
protection is, independently of Congres's enacting it.  This is so
because by virtue of Dickerson, 3501 has lost the force and effect of
law.    However, if we accept the practice that invalidated laws
sometimes stay in the statute books, and should a litigant somehow be
able to get the question of validity before the Court again (itself a
neat trick given discretionary jurisdiction), then I do not think that a
judge who acknowledges the effect of the first case is bound to vote
that way on reconsideration, unless his/her theory of constitutional
interpretation regarding precedent compelled him/her to do so.  But I
don't see why it necessarily should: could not the judge treat the
present petition as a request that the court reconsider its first
judgment?  And in that posture, can't the judge vote her best judgment,
all things considered (including whatever her theory of precedent tells
her regarding what weight to give the first decision)?

Chris Schroeder
Duke law and public policy studies

>>> tgrey at LAW.STANFORD.EDU 07/18/00 05:04PM >>>
The study in question evidently uses the willingness of S Ct justices
follow as precedents decisions they originally dissented from as a
of their lawful as against their wilful tendencies. On the issue of
"legality," I've found it useful to think of the distinctively legal
virtues as threefold -- determinacy, fidelity, and coherence. These
conflict on this question, as on others. Determinacy generally favors
following precedent. Fidelity (in constitutional cases) depends on what
think makes up the Constitution (ie, a "living constitution" approach
has its fans), but for originalists and textualists, fidelity means
sticking with the Justice's best judgment of what the text-in-context
requires. Coherence says resist or bend to precedents depending on how
they fit into the legal landscape (with variations possible along a
spectrum from those who stress the most local landscape -- the
-- to those who stress the landscape as a whole -- the Grand

Shameless Plug Dept: I have a working paper up on SSRN ("The New
Formalism") where I show how
contemporary formalists (I take Scalia as prototypical)
endorse all three of these clusters of legal values. This is not
necessarily to their (his) discredit; so have Rule of Law advocates
the ages. But it tends to make finding an operational measure of
"lawfulness" a problematic business.

-- Tom Grey     Stanford Law School    tgrey at

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