  |  | ||||
| |||||
        | |||||
How stare decisis Subverts the Law
By:
Date:
| |||||||||||||||
| How stare decisis Subverts the Law | | |||||||||||||
By: | | Jon Roland | | ||||||||||||
Date: | | 06/10/2000 | | ||||||||||||
| | | | ||||||||||||
|
| |
How 'stare decisis' Subverts the Law One of the most important doctrines in Western law is that of stare decisis, a Latin term of art which means "to stand by decided cases; to uphold precedents; to maintain former adjudications".[1] In modern jurisprudence, however, it has come to take on a life of its own, with all precedents being presumed to be well-founded unbiased legal decisions, rather than political decisions, and presumed to have both the authority of the black-letter law on which they are based, plus that of the precedents on which they are based, so that later precedents are presumed to be more authoritative than earlier ones. The doctrine also tends to give great weight to the opinion in the case, even to the point of treating the opinion as though it was law, even though only the order and findings have the actual force of law, and an explanation of how the decision was reached is only dictum. This means that a poorly-worded opinion can define a set of legal positions that exceed the bounds of the underlying black letter law, and become the basis for future precedents, as though it were black letter law itself. The doctrine tends to disfavor legal argument that precedents were wrongly decided, especially if they are precedents established at a higher level in the appeals hierarchy, and to demand the litigants "distinguish" their cases from adverse precedents, arguing that those precedents do not apply to the present case because of elements that make it different from the cases on which the precedents were established. This can be very difficult to do if there are a great many recent cases on the same issues which cover most of the possibilities. The situation can be made more difficult by the rules of most courts which limit the length of briefs the litigants may file. In working backward through a long line of wrongful precedents, a litigant can reach the length limit before the argument can make it back to the foundations where the chain of precedents began to drift away from its authority in the black letter law. The situation can be illustrated by the Venn diagram below, in which the first set A represents the set of legal positions consistent with the Constitution, and the points outside the circle represent unconstitutional positions. It is noted that the boundary of the set is fuzzy, representing the ambiguity of interpretation at the boundary. The central point B' represents a court decision whose opinion defines a set of legal positions consistent with it, shown by the elliptical set with the letter B at the top, but a portion of that set extends beyond the bounds of A. The opinion in the next decision C' also falls within A and defines yet another region C of consistent positions, but which extends beyond both A and B. Decision D' falls within C, but not A or B, and further defines a consistency set that extends beyond A, B, and C. The Decision E' doesn't lie within any of the regions defined by the previous precedents, but its region of consistency overlaps D and barely C, the kind of situation that might result from a legal argument that reaches to get a political decision not based on precedent. Finally, the last decision F' is based on E defines consistency set F but lies entirely outside A, B, C, and D. The problem for jurisprudence, especially constitutional jurisprudence, is how to get back within A when one's opponent's position is supported by F and one cannot distinguish precedents taking the argument back to A within the brief page limits. It may be almost impossible unless or until one can get the case to the Supreme Court, which can ignore and reverse its own precedents, but which can take only about 75 cases a year, and is reluctant to issue sweeping opinions that can cover a large number of cases that might otherwise deserve to be granted certiorari, but which will never make it because the litigants are discouraged from making fundament arguments that might work with the Supreme Court but which would be disfavored by lower courts. It is difficult to estimate how many unconstitutional legislative provisions are adopted each year by Congress, but a plausible number is more than 20,000, or about as many as the number of bills introduced each year. There is simply no way that the federal courts can handle all the cases that might arise under that many provisions. They are almost forced to rely on the presumption of constitutionality of statutes, but members of Congress are increasingly reluctant to restrain themselves from adopting legislation they know to be unconstitutional, but which is supported by some of their constituents, and passing the duty to the federal courts of striking legislation that should never have been passed in the first place. There would appear to be only two ways out of this predicament: Either the people must start electing different members of Congress, and demand that they strictly comply with the Constitution, or else the courts, especially the Supreme Court, need to start issuing sweeping opinions which effectively strike down entire blocs of legislation. The Supreme Court, beginning with the decision in United States v. Lopez, 514 U.S. 549 (1995), and continuing in 2000 with several decisions like United States v. Morrison, Docket 99-5 and Jones v. United States, Docket 99-5739, which roll back the federal criminal legislation based on the Commerce Clause, is nevertheless still unwilling to issue sweeping opinions, but prefers to rely on narrowly constructed opinions that have the effect of introducing confusion and conflict into the system of precedents, perhaps in the hopes that lower courts will seize on them to create still more conflicts, which the Supreme Court will then only have to decide among. Stare decisis is the way judges seek the safety of the herd. Notes: 1. Black's Law Dictionary, 2nd ed., New York: West Pub., 1910. | | | ||||
| ||||||||
