What is the Ratio Decidendi's Role in Law, Politics, and Culture?

[Robert Justin Lipkin]

In a message dated 4/19/2001 9:02:40 AM Eastern Daylight Time,
tushnet at LAW.GEORGETOWN.EDU writes:


> Traditionally, the X was the ratio decidendi.  There's a very large British
> literature on identifying the ratio, because the House of Lords continues to
> issue seriatim opinions.  I think the leading article is by A.L. Goodhart,
> "The
> Ratio Decidendi of a Case," 22 Modern L. Rev. 117 (1959).


Thanks to Mark Tushnet for alerting me to the Goodhart piece.  My question
can now be restated as follows:  What conceptual, political, legal, and
cultural force does the ratio decidendi have?  In other words, once the
problems of identifying the ratio are resolved in a particular case--and even
without having read the Goodhart piece I'm not underestimating these
problems--what force does the ratio have? Suppose a three judge court
produces three different opinions in a case, can there be a ratio in this
case? Is this just an example of the intractability of identifying the ratio?
Is it that the practice of writing seriatim opinion depends on being able to
identify the ratio, so that even without formally voting as a court, the
ratio plays the same role as a contemporary decision and the vote that
supports it?  But then whose opinion regarding the correct ratio is
dispositive?

       Additionally, once the pre-Marshall Court or the House of Lords issues
seriatim opinions, what implications does the ratio have and in what
contexts? Future Supreme Court cases? Other forms of litigation?  Further,
what role does the ratio play in the broader political culture?  Did (could?)
constitutional law in the pre-Marshall era play the kind of role that Supreme
Court decisions play in ours? Now, at least, anyone can say, for example,
that the Supreme Court validated the practice of taking race into account as
one factor in redistricting as long as she knows that the Supreme Court
decided 5 to 4 in favor of this practice. What is the counterpart to this in
the practice of issuing seriatim opinions?  I suppose (I hope) I can answer
these questions simply by examining pre-Marshall Supreme Court cases.  And I
will do so. But without a formal vote, I am skeptical that any alternative
analytic device is intelligible. Thanks again.

Bobby

Robert Justin Lipkin
Professor and H. Albert Young
Fellow in Constitutional Law
Widener University School of Law
Delaware



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