Verification Re: your understanding of precedent

[stokeoo1 at TC.UMN.EDU]

David Barron writes:

> 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?

Hmm.  Could Congress pass a statute saying "the first decision of
any federal court of appeals interpreting a provision of this act shall
constitute the meaning of that provision for all future purposes,
regardless of the text of the statutory provision or its legislative
history"?  Could it do so if it said the Supreme Court rather than a
federal court of appeals?  I am uncertain of this, but I think the only
argument against a congressional power to do this would be a
nondelegation argument -- the delegation being standardless if
Congress's words in the statute have no definite meaning, and the
"agency" has complete discretion to do whatever it wants.

But here's what troubles me:  Why should we assume that Congress
has said anything like this at all?  Surely we should not infer from
congressional silence or inability to overrule specific statutory
(mis)interpretations that this is the implicit, background directive
concerning the interpretation of all congressional statutes.

Michael Stokes Paulsen
University of Minnesota Law School