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.


KipEsquire said...

I'm surprised you didn't include Scalia's dissent in Lawrence, in which he tried -- unsuccessfully in my opinion -- to call out the pro-Roe justices for being "inconsistent" on the question of a decision's age and the role of stare decisis. (Bowers to Lawrence was 17 years; as you note, Roe to Casey was 19 years.)

Of course, the pesky possibility that maybe, just maybe, Roe was right and Bowers was wrong never occured to him. Go figure.

Meanwhile, I'm still hopeful that Kelo will break the record for "quickest to be overturned."

Sobek said...

I agree with your main premise and conclusion -- the age of a precedent is a two-edged sword, and of virtually no persuasive power. Plessy v. Ferguson was venerable at the time of Brown v. Board, and yet its age did not save it.

I also agree that Lawrence v. Texas belongs in this discussion -- what changed between 1986 and 2003, other than the composition of the Court?

Ginsburg makes this express argument in Gonzalez v. Carhart: "...the Court, different composed than it was when we last considered a restrictive abortion regulation, is hardly faithful to our earlier invocations of 'the rule of law' and 'the principles of stare decisis.'"

Assuming that "middle aged" precedents are between five and none years old (according to Prof. Dorf's tongue-in-cheek analysis), and that Gonzales is seven years older than Stenberg, Ginsburg's argument here is especially weak.

Of course, such questions are only relevant when one first assumes that the Court is not composed of political actors who rule according to personal preference, rather than law.

Tam Ho said...

I think one important qualifier in Prof. Dorf's conclusion is "by itself." Of course, by itself, the age counts for nothing, because, as Prof. Dorf irrefutably points out with persuasive reasons, a precedent's age can cut both ways. This is something I believe we all agree on.

But that proposition is compatible with the proposition that when used in combination with these valid reasons, the old age of a precedent can either bolster the idea that it is venerated because of its age, or on the other hand, it can supoprt the notion that the precedent is based on anachronistic mores that no longer hold (and the flip reasons for a young precedent). Of course, the valid logical reasons should ultimately be the primary justification for the decision, but that is different than saying that age, put in proper context and used in conjunction with these other logical reasons, serves no probative value, merely because of the fact that it can, in the abstract, cut both ways.

Let me try this analogy, which is particularly interesting to me because it's also a point about logic and argumentation, an intro course in which I believe should be required in every undergraduate and certain every law curriculum. My epistemolgoy teacher used to tell me that he disliked teaching the standard "logical fallacies" because while strictly speaking, they are fallacies, many undergraduates, particularly in intro courses, misunderstand their application. For example, consider the "appeal to authority" fallacy, which is an attempt to show that a proposition is true because somebody with superior knowledge (or some other superior power) says so. Of course, as a matter of pure deductive logic, this is indeed a fallacy because it is logically possible for even the most knowledgable experts to propound a false proposition (either because she is genuinely mistaken or is acting in bad faith, or whatever).

Nonetheless, it can be perfectly rational for an educated and intelligent person to give more consideration or credence to a claim (even if it initially appears to be counterintuitive) because the claimant is well-respected. Indeed, this is how advances in knowledge often come about; a Stephen Hawking will make a counterintuitive claim, without solid proof, that runs against standard assumptions. And though SH saying so doesn't make it so, people will give it serious thought because SH is saying it, and then investigate further, to either confirm or deny it. Often, the claim will turn out to be true.

On the other hand, there are also valid reasons to discount a claim by virtue of the high status of the scientist: because, for example, she may be biased towards a set of views that jibe well with her other theoretical (and perhaps professional) commitments.

But these two abstract possibilities, demonstrating that the well-respected status of a scientist can cut both ways, is compatible with the notion that it is still rational for us to give the person's status, identity, and authority, some role to play in deciding whether or not to accept the claim. Which way that factor cuts is a matter to be filled in and argued with the particulars of the case.

That's why I think the "by itself" qualification is an important nuance to Prof. Dorf's conclusion (as I understand it - he can correct me if I'm wrong), which I hope the above imperfect analogy helps to draw out.

Benjam said...

if a precedent is really old, it may be more likely the result of outdated norms and mores perhaps including concepts of race, gender, or orientation. older precedent may also be the result of inaccurate information or obsolete technology such as the deterrent effect of capital punishment or the viability of a fetus. so older precedent may be more vulnerable to a departure based on changing sociological circumstances. most people would see these "fact based" reversals as more justified compared to more "ideological" reversals which result from the changing composition of the court.

i was reading a piece recently by howard gilman that explores the various applications of the norm of stare decisis. the idea is that there is a universal norm that lower courts must follow the precedent of a higher court. there is less (but still substantial) support for the idea that justices should follow the precedent established in prior ruling established by their own court. finally, there is NOT an expectation that a justice should follow a precedent established in a ruling from which she dissented. moreover, some would think that supreme court justices should NEVER follow a precedent which they believe is wrongly decided. any thoughts on vertical versus horizontal precedent?

egarber said...

I think one important distinction -- and this may explain why Roe and Bowers are different -- relates to how often an original precedent is affirmed throughout its life.

We've seen in the SCOTUS confirmation hearings how often Roe has been affirmed -- I recall Specter showing us a chart or some kind of visual. Was Bowers repeatedly reinforced the way Roe was (I don't know -- I'm just asking)? If not, I think it's possible to make the case that age can matter, provided that the precedent remains relevant, and doesn't morph into something that is just collecting dust somewhere in the past.

Benjam said...


wouldnt the Supreme Court's repeated affirmation of a precedent indicate either a high level of lower court non-compliance or else repeated statutory attempts to skirt the ruling? seems like repeated affirmation indicated less societal acceptance.

just a thought...

Sobek said...

Scalia has an interesting discussion of precedent in his Wisconsin Right to Life concurrence:

"...this Court has a 'considered practice' not to apply [stare decisis] 'as rigidly in constitutional as in nonconstitutional cases.' This Court has not hesitated to overrule decisions offensive to the First Amendment -- and to do so promptly where fundamental error was apparent. Just three years after our erroneous decision in Minersville School Dist. v. Gobitis, the Court corrected the error in Barnette. Overruling a constitutional case decided just a few years earlier is far from unprecedented.
"Stare decisis considerations carry little weight when an erroneous 'governing decision' has created an 'unworkable' legal regime.
"It is not as though McConnell produced a settled body of law. Indeed, it is far more accurate to say that McConnell unsettled a body of law.
"Neither do any of the other considerations relevant to stare decisis suggest adherence to McConnell. These cases do not involve property or contract rights, where reliance interests are involved. And McConnell's s 203 holding has assuredly not become 'embedded in our national culture.'"

(Internal citations and brackets omitted).

Sobek said...

benjam said: "seems like repeated affirmation indicated less societal acceptance."

In the case of Brown v. Board that is undoubtedly true. In the case of Roe v. Wade, it is far less clear. abortion can neither be described as socially acceptable or socially unacceptable -- Americans are pretty much split down the middle on the issue.

egarber said...

wouldnt the Supreme Court's repeated affirmation of a precedent indicate either a high level of lower court non-compliance or else repeated statutory attempts to skirt the ruling? seems like repeated affirmation indicated less societal acceptance.

That’s an interesting point. Let me throw out these random thoughts:

1. Sometimes the SCOTUS gets involved to settle disagreement in the lower courts. Who is to say the side that ultimately wins isn’t the one accurately reflecting society’s beliefs in the first place?

2. If “repeated statutory” attempts might mean attempted law in say, 6 southern states, what if the rest of the United States doesn’t have such statutes? Against this ratio, you could argue that a high court ruling pushing back still protects general societal values.

Benjam said...

sobek & egarber:

those are both good points, to the extent that repeated affrimation may indicate ELITE or REGIONAL non-acceptance rather than societal consensus opposing the precedent.

my primary point is to explore the various models (principal agent / team) which try to explain compliance and non-compliance. so the idea is that relative to most cases, repeated affirmations indicate relatively more non-compliance and relatively greater opposition in elite or regional segments of society. (these kinds of things always get measured at the margins.)

to take the counter-factual, it isnt common that the suprme court needs to repeatedly reaffirm a statutory interpretation on some rather obscure point or another. or maybe i'm wrong about that?

egarber said...

I'd be curious to hear what Professor Dorf thinks of this question:

Does repeated affirmation reflect and reinforce / validate societal norms? Or do they indicate that the Court is standing in the way of society's real desire? My knee-jerk thought was the former, but there is a very good conversation going on within this post.

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