Timothy Schwarz, Cases Time Forgot: Why Judges Can Sometimes Ignore Controlling Precedent

• Publication year: 2007

CASES TIME FORGOT: WHY JUDGES CAN SOMETIMES IGNORE CONTROLLING PRECEDENT

INTRODUCTION

Deep clashes in values often lead to deep clashes in the doctrines of the law.¹The law is expressed partly by precedent, and thus clashes in values can affect the way in which courts use relevant precedent.²Traditional theories of precedent assert that precedent can be followed, distinguished, or overruled.³

More sophisticated theories suggest that precedent may also be treated as mistaken.⁴This Comment argues that courts also use another technique: ignoring precedent. Understanding the phenomena of ignoring precedent will foster understanding of the general theory of precedent.

This Comment defines an ignored precedent as a precedent treated by later courts as having no controlling force without any indication that the original deciding court would reach a different result. In a case where the rule of the ignored precedent would control in favor of a particular result, a litigant who cites that precedent would not persuade a later court to change its ruling.⁵

From the perspective of the later-deciding court, such a precedent is as effective as speaking a language that the court does not understand.⁶Yet the later-deciding court is acting in good faith, attempting to apply the law as best the law can be understood as a whole.⁷

This Comment argues that ignoring precedent is a normal, although uncommonly used, technique for dealing with particular precedent. In the particular precedent, the result was reached because the deciding court perceived a particular value as controlling the outcome. But later courts did not see the particular value as relevant, and so the later courts ignored the rules of law-articulated or implicit-in the precedent. The precedent itself is not overruled because its underlying values are still relevant in the particular factual circumstances of the precedent itself. The precedent continues to exist, but without any influence on the law more generally.

Part I describes the way ignored precedent appears to the practicing lawyer and defines ignored precedent by comparison to other situations where precedent is treated as nonbinding. Part II of this Comment describes the basic theory of precedent and why precedent is ordinarily considered binding. Part III considers how deciding courts bound by precedent ordinarily applied and interpreted the precedent. Part IV describes the basic techniques available for a judge to avoid the binding effect of a precedent and reach a different result. Part V examines why precedents might be ignored. Specifically, this Comment argues that precedents are ignored when they fall into the cracks between competing values in society. Part VI provides specific examples of ignored precedent. Part VII argues that alternative explanations of the phenomena of ignored precedent are inadequate.

I. EXPERIENCING IGNORED PRECEDENT

Imagine an appellate litigator researching in preparation for writing a brief to an intermediate court of appeals. This litigator discovers a precedent from the court of last resort of the jurisdiction that decides an important legal question in favor of the litigator's client.⁸To persuade the deciding court of the content of the law, the litigator cites the precedent extensively in the brief.⁹

Now imagine that the deciding court rules against the litigator on this legal question. In fact, the deciding court makes no effort to explain why the precedent does not control. Even given this nonconformance, the litigator is certain the superior court would decide the same way again if that court were faced with the facts of the precedent.¹⁰

The litigator would be confused by this result because litigants reasonably expect precedent will be followed if it is still good law.¹¹In not giving effect to the precedent of the superior court, the deciding court has apparently rejected the binding nature of precedent.¹²The litigator might assert that the deciding court was acting in bad faith, forsaking the ideals of the rule of law in favor of particular outcomes.¹³

To defend the deciding court, some explanation of the court's behavior must be articulated. In the trivial case, ignoring precedent can be explained by the fact that the deciding court is unaware of the precedent that it ignores.¹⁴

One might easily say that the deciding court itself would admit that an error occurred in the process of deciding the case.¹⁵But in the case of the imagined litigator, the case was directly cited to the deciding court, and that court gave the precedent no effect at all.

The litigator is aware of a type of precedent where citing the opinion is not expected to change the outcome: unpublished opinions. An unpublished opinion is a decision-usually of a court of appeals-that resolves a particular case but cannot be cited in any other case.¹⁶Usually, the issues resolved are simple and straightforward.¹⁷But because of the rules of the deciding court, that opinion may not be cited back to the court as precedent in deciding a later case.¹⁸Effectively, the opinion does not persuade the court adjudicating a later decision because the unpublished opinion is treated as nonexistent.¹⁹

There have been many criticisms of the practice of unpublished opinions, including assertions that unpublished opinions are unconstitutional,²⁰arrogant,²¹or exceed the judicial role.²²Without stepping into that debate, the parallel between an unpublished opinion and an ignored one is very close.²³In both cases, citation of something that arguably binds the deciding court is met, not with agreement and conformity, but with hostility. Rather than leading to the adoption of the result supported by the precedent, the citation carries no weight at all.

But the litigator can point out two differences between the two classifications. First, there is nothing unusual about a deciding court reaching the identical result as was reached in the unpublished opinion.²⁴An essential part of the definition of an ignored precedent is that the deciding court reaches the opposite result.²⁵

The more important distinction between unpublished opinions and ignored precedent is the amount of advance notice given to lawyers. Unpublished opinions cannot be cited because of a rule of the court that wrote the opinion,²⁶while no reason is given for the nonpersuasive character of an ignored precedent. As a practical matter, this means that lawyers will be able to predict when an unpublished opinion will not be given weight, but will not be able to predict when a precedent will simply be ignored.²⁷

This practical problem is a reflection of a lack of formal justification for the practice of ignoring precedent. The practice of unpublished opinions may be criticized, but the existence of a formal rule means that lawyers are not struggling to understand why unpublished opinions are treated as they are by courts.²⁸In contrast, practicing lawyers can be expected to struggle with ignored precedent because they are not given a formal justification for ignoring precedent.

If a justification for ignoring precedent were articulated, it is not clear what precisely would be wrong with a deciding court choosing not to obey precedent.²⁹Judges occasionally assert that other members of the court are ignoring precedent.³⁰But this tends to be an accusation that the precedent has been misunderstood, not an accusation that the binding effect of the precedent has been ignored.³¹

II. PRECEDENT IN THEORY

To understand ignored precedent, one requires a foundational understanding of the theory of precedent, which this Part will provide. First, this Part will define precedent, distinguishing it from the broader category of authority. Second, it will briefly examine the reasons why precedent is binding.

Authority consists of all materials-including, but not limited to judicial opinions-that are "definitive or decisive" in deciding a case.³²There are three basic types of authority available for a court to examine in deciding the case before it. The first is persuasive authority. The touchstone of persuasive authority is that the deciding court is not required to follow result or reasoning of the referenced authority.³³The deciding court must come to agree with the authority or the court will not follow that authority.³⁴

The next type of authority is binding authority. Binding authority requires the deciding court to reach a particular result.³⁵For the highest court of a jurisdiction, binding authority might consist primarily of constitutions and statutes.³⁶But for inferior courts, decisions of superior courts make up a significant portion of the binding authority to be followed.³⁷

The final type of authority derives its force from the principle of stare decisis. This principle requires a court to follow its own prior decisions even though the court has the power to overrule them.³⁸Following a prior case under the principle of stare decisis does not imply that the previous decision was absolutely right, but only that the decision was previously decided.³⁹A court is bound not to overrule the prior opinion absent extraordinary circumstances.⁴⁰

For the purposes of this Comment, precedent should be understood as judicial opinions that fall within either of the latter two categories, binding authority and stare decisis authority.⁴¹To put it another way, the relevant precedents in a case are those judicial opinions that a deciding court is expected to address, either explicitly or in substance, in the course of resolving the particular case.⁴²

The standard judicial procedure is to follow on-point precedent.⁴³

Following precedent presents no difficulty when the "correct" result is the one reached by precedent.⁴⁴But the presumption of following precedent exists even when the precedent reaches a result that the deciding court believes is incorrect.⁴⁵These strong norms exist with regard to following both binding authority⁴⁶and stare decisis.⁴⁷However, the reason why courts feel constrained is...