The world we leave our children

[Alan Gunn]

In message Thu, 9 Oct 1997 14:08:29 -0500,
  "Marie A. Failinger" <mfailing at PIPER.HAMLINE.EDU>  writes:


>
> At its best, "theory" challenges judges to probe the consistency and
> fairness of their gut instincts, and to uncover and evaluate the
> assumptions on which they are based.  Thus, a three or ten-part balancing
> test without an explanation and justification of the parts is no better
> than a monolithic rule is no better than the direct application of a value
> (like good faith).

  Isn't this what judges should do in ordinary common-law cases and (with
some additional considerations too) in statutory interpretation cases? I
had been assuming that the tendency of con law people to describe what
they do as "theory" was meant to show that they had something more
profound going on than this. If not, the word "theory" seems to be misused.

> Justices who are not willing to be corrected by "theory" in this sense had
> then better be ready to be corrected by legislatures, and legislatures who
> are not willing to be corrected by "theory" because of the valid need for
> compromise decisions and responding to the immediate emotions of the
> constituency should be willing to be corrected by judges.
>
Amen. But even justices who do use "theory" in this sense ought to be
corrected sometimes, I suppose.

> One sees judicial opinions where a judge is almost willing to say, the
> legislature must be right and I was/could be wrong.  Can anyone think of a
> case in which legislative leadership has admitted, we were wrong and the
> judge was right (that is, admission as opposed to acquiescence?)

  I can't, but perhaps it would be too much to expect, especially from
politicians. Judges suffer from this too, even when the mistakes are
those of their predecessors. There are a couple of recent Supreme Court
tax cases in which the Court, as a practical matter, overruled earlier
decisions that had worked out very badly in practice. In each case, the
Court produced a ridiculous opinion, saying, in effect, "everybody has
misread our earlier opinion." In one of these cases, the earlier opinion
*rejected* the rule which the later opinion said it really stood
for! Why they write opinions this way is a puzzle: in each case they
did the right thing, substantively, in the end, but the opinions
reinforce the tax bar's almost unanimous view that, as Charles Lowndes
once put it, "It is time to save federal taxation from the Supreme Court."
This tends to offend tax lawyers personally, as most of us have told
clients, students, or readers of our scholarly works that the original
opinion meant what it said; then the Court comes along and says, "you
misread our first opinion, you idiots." This doesn't fool anybody.

  In case anybody cares, the opinions are Arkansas Best, 485 US 212 (1988)
(overruling Corn Products Refining Co., 350 US 46 (1955)) and INDOPCO, Inc.,
503 US 79 (1992) (overruling Lincoln Savings, 403 US 345 (1971)). Note the
33-year gap between Corn Products and the case that did it in. The
Corn Products opinion was written by Justice Clark. Why in the world
would the Court, in 1988, worry about saving face for *him*?

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Alan Gunn
Notre Dame Law School