Evaluation of decided cases.

JurisdictionUnited States

Section 49. Evaluation of decided cases.—Regardless of how closely the facts in a decided case may resemble those in your case, you must always remember that decisions are not fungible, and that turning up the famous bay horse case in a digest does not necessarily solve the brief-writer's problem.

It is of course unnecessary to belabor the proposition that, while decisions of higher courts govern litigation pending in lower courts, the decisions of lower courts do not control cases above except to the extent that their reasoning is persuasive. The difficulties arise out of the practical qualifications to that indisputable general rule.

First, when can a Supreme Court decision safely be taken at less than its face value by a Court of Appeals? One instance is the unusual situation when the lower court feels that the cited decision is about to be overruled.19 Another, perhaps too little appreciated, is when there is no opinion in which a majority of the justices sitting have joined; in that event, there is no precedent for the future; "the lack of an agreement by a majority of the Court on the principles of law involved prevents it from being an authoritative determination for other cases."20

A fuzzier situation by far is the recurring problem of when an earlier decision is to be considered as being no longer law even when it has not been specifically overruled. Sometimes, as in the recent case invalidating an ordinance that enforced segregated transportation,21 a lower court is safe in assuming that the earlier decision—there Plessy v. Ferguson22—lacks vitality. It is likewise safe to assume that many of the Supreme Court's holdings from the 1920's and 1930's which, on grounds of due process, held unconstitutional a host of regulatory statutes, are similarly no longer authoritative.23 In recent years, too, we have seen that the broader construction now given the Sherman Act has limited the force of Federal Baseball Club v. National League,24 decided in 1922, to baseball alone;25 that decision no longer protects restraints of trade occurring in other spectator sports or activities.26

In part, of course, the problem is to predict how far the Supreme Court will hew to the line of stare decisis. But what is perhaps more troublesome to the advocate in a court of appeals is the respect that the lower Federal courts pay to Supreme Court dicta, respect that is certainly greater than that accorded those expressions by the Supreme Court itself.

For instance, in the Hirshberg case,27 the question was whether a career sailor who had reenlisted, after an interval of less than 24 hours after discharge, could be tried by court-martial in the subsequent enlistment for an offense committed in the earlier one. The Supreme Court, reversing the Second Circuit, answered that question in the negative, basing its decision entirely on statutory grounds. Believing therefore that no constitutional question was involved, and with the Hirshberg case specifically before it, Congress amended the law to provide that in such a situation the offender's amenability to military jurisdiction would continue.28 When the new statute was thereafter assailed, the District of Columbia Circuit upheld it in the belief that no constitutional issue was involved.29 But on certiorari the Supreme Court in Toth v. Quarles30 decided that the provision was unconstitutional.

Just half a century ago, Mr. Justice Holmes defined law as "a statement of the circumstances in which the public force will be brought to bear upon men...

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