The conservative case for precedent
Treating like cases alike is central to the U.S. legal system. Socially and morally, the advantages of juridical consistency are assumed to be foundational. For this reason, among the very first in a line of crucial terms that a first-year law student learns is “stare decicis“, the Latin phrase for “stand by things decided.”
A prime reason that courts “stand by things decided” is that, in cases coming before them, they typically encounter standard iterations of well-defined legal themes. It is a rare day when a truly novel legal or factual issue arises. In practice, stare decicis means that, when a court encounters a case with issues of fact and/or law implicated that it has encountered before, that court will defer to its existing patterns of thought in lieu of starting from scratch. As a matter of judicial economy, stare decisis is invaluable, but it serves other, perhaps more important, purposes: judicial predictability and private coordination.
Lines of precedent are relied upon by private parties as they plan for the future. Plainly, complying with the law is less of a chore when its application is discernible. Businesses, in particular, rely on the consistent application of the law, because they are among the most likely to be targeted for liability when precedent abruptly shifts or moves.
To draw attention to the problem of a moving legal target and other court-related maladies, the U.S. Chamber of Commerce releases an annual list of the nation’s “Judicial Hellholes“. These uncertain jurisdictions, found in red and blue states alike, may not be pure creations of political ideology. Instead, what connects them is that they exist within, and create expansive and amorphous zones of, civil liability. It’s bad enough when poor or ill-considered public policy choices of the electorate and their representatives are the cause. Deplorably, courts are also playing a significant role.
To describe the phenomenon of courts making public policy choices from the bench, commentators have popularized the phrase “judicial activism.” Unfortunately, hyperbole in its use and over-breadth in its application have left the phrase unmoored from easily discernable meaning.
Commendably, Colleen Pero, writing for the American Judicial Partnership, seeks to re-introduce meaning to the phrase by outlining indicia of judicial activism. She concludes that courts are being judicially activist when they deviate from an otherwise predictable outcome in favor of a particular policy outcome. Common examples include the use of non-mandatory authority as the basis of an opinion and the insertion of novel language into a statute to allow the law to support a meaning consistent with a desired outcome.
Courts typically have a degree of freedom to determine how they will interpret statutes. Some methodological flexibility is unavoidable. However, where methodological flexibility significantly reduces consistency and predictability, justice may be distorted. Differing interpretations of different facts may be legitimate, but inconsistent interpretations of similar bodies of law marks the very definition of judicial activism. Among all forms of judicial activism, methodological activism is particularly undesirable from a coordination perspective.
To counteract or defend against such judicial unpredictability, states should be led to embrace systems of methodological stare decicis. Such systems cement into law – for the benefit of courts and the public – interpretive road maps that provide a slew of benefits. Predictability is improved, since parties coming before the court understand what to prioritize in their briefs and what types of arguments the court would find compelling. Stability is improved, because parties can better evaluate what sorts of claims are worthy of pursuing in litigation. Efficiency is improved, because courts are not forced to select from a panoply of interpretive doctrines currently in circulation.
Most importantly, when methodological decisions are given a stare decisis effect, the complexion of the judiciary’s role changes. It shifts away from a law-making task for which it is ill-suited and toward greater predictability in the application of law.
One state, Oregon, conducted an experiment with methodological stare decicis. In PGE v. Bureau of Labor and Industries, the Oregon Supreme Court instructed its courts to adhere to a strict analytical hierarchy to help observers predict when, how and what to bring before Oregon courts. The system directed interpretive action to adhere to a three-step process. First, courts were instructed to take a look to the text of the statute and its surrounding context. Next, if the text contained unresolvable ambiguity, the court was to look to legislative history. Finally, in the event that understanding could not be gleaned from the first two tiers of scrutiny, the court was bound to look to maxims of statutory construction.
The result was that private parties in conflict, the Legislature and lower courts knew broadly what to expect, both in decisional reasoning and, ultimately, outcome. In an article on the topic, Abbe Gluck observed that from 1993 to 1998, the Oregon Supreme Court looked at 137 statutory-interpretation cases, reaching legislative history 33 times and substantive canons only 11 times. From 1999 to 2006, the court applied the statutory-interpretation framework 150 times, reaching legislative history nine times and never reaching the canons of construction. Clearly, a methodological preference for textualism was carrying the day in the period that followed PGE and its progeny.
Naturally, the content of any such interpretive roadmap is crucial. Some interpretive methodologies are preferable to others from a free-market perspective. Still, for the purposes of achieving the benefits of coordination and predictability, there is no need to come to any particular conclusion about the desirability of one system of statutory-interpretation over another, since methodological stare decisis would see the development of methodological precedent. Matters relating to a particular statute would be reliably interpreted according to an attendant methodological precedent.
At its core, methodological stare decisis is an institutional solution to the problem of extreme decisional variations and a reminder that all forms of legal precedent matter. Once an issue is decided – even if it is, from one’s own perspective, decided wrongly – the way that it is decided methodologically becomes ensconced in the body of law, to be referred to and relied upon by others moving forward.
This is not to say that stare decisis is immutable. It is not. Judges consistently revise, rework and reimagine the law as it relates to novel variations in its application. But the limiting function of stare decisis remains essential. At the very least, it serves to stymie rapid transformations that upset the public’s ability to rely upon the law. In essence, it is a procedural mechanism whereby the law expresses a preference for incrementalism.
Society as a whole benefits when risk, even in the form of judicial outcomes, can be assessed and accounted for.
