Wednesday, August 15, 2007

Precedent Shelf Life

This past June, in Leegin Creative Leather Products, Inc. v. PSKS, Inc., the Supreme Court overruled its 1911 decision in Dr. Miles Medical Co. v. John D. Park & Sons Co., concluding in Leegin that henceforth vertical price restraints would be judged by a rule of reason rather than being deemed per se invalid. Writing in dissent for himself and Justices Stevens, Souter and Ginsburg, Justice Breyer invoked the length of time during which Dr. Miles had been on the books as one among many reasons why, in his view, the majority was wrong to discard it. I am not now interested in which side had the better of the argument as a whole. I am interested instead in the question of what weight, if any, a precedent's age ought to have in an overruling decision.

The claim that an old precedent is a strong one in virtue of its age is plausible because the older the precedent is, the more embedded it is likely to be in the law more broadly. Individuals and institutions will have likely relied upon the precedent in ordering their affairs in a way that they cannot have relied on a case decided yesterday. So far so good.

But a precedent's age can also be its undoing. Perhaps it was based on factual premises believed to have been true when the case was originally decided but since shown to be false. Or perhaps it was based on moral premises (e.g., proper roles of men and women) that have been broadly rejected. Or perhaps the law itself has changed with respect to related questions, so that the old precedent now appears anomalous. These phenomena are all more likely to occur as the age of a precedent increases.

Moreover, the recency of a precedent can also be a reason for adhering to it. In Payne v. Tennessee, the Court held that the admission at a sentencing hearing of victim impact statements does not violate the Eighth Amendment's prohibition of cruel and unusual punishments, overruling a case that had been decided just four years earlier, Booth v. Maryland, and which had been reaffirmed just two years earlier in South Carolina v. Gathers. Dissenting in Payne, Justice Marshall invoked the recency of Booth and Gathers as a reason to adhere to the rule they had established. He stated bluntly: "Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did."

Is it possible that precedents are strongest when they are very old or very young, but most vulnerable when they are middle-aged? And if so, what counts as middle-aged? Twenty years? In Planned Parenthood v. Casey, the Court found that the then-19-year-old ruling in Roe v. Wade was old enough to have become embedded in constitutional law. The Court had said much the same thing in Thornburg v. ACOG, when Roe was merely 13 years old, citing the "strong public interest in stability." Indeed, when Roe was only 10 years old, in Akron v. Akron Center for Reproductive Health, the Court reaffirmed Roe on stare decisis (and other) grounds. So if 10 is old enough to count as old, but 4 is still young, then the window for a middle-aged and thus vulnerable precedent must be quite narrow: 5-9 years, I suppose.

Needless to say, I don't mean this conclusion seriously. Rather, my point is that the length of time that elapses between an original decision and a decision whether to overrule it cannot by itself count for anything.