учебный год 2023 / The power of Congress over the rules of precedent

This is not to deny that Americansat the time of the Framing expected courtsgenerallyto follow precedent.They did.58I do mean to deny that duringthe Framingera the idea of judicialpower was thoughtlogicallyto implythe creationof precedent.As I will explain presently,the force of precedentcame, not from anythingintrinsicto the judicialpower,but fromthe commonlawrulesof staredecisis.

If I amrighton thispoint,the United StatesCourtof Appeals for the Eighth Circuitrecentlywent badly wrong when it addressedthe constitutionalstatus of stare decisis. In Anastasoffv. UnitedStates,59 the Eighth Circuitheld unconstitutionalits internalrule underwhich

unpublishedpanel opinions have no precedentialweight. The court concluded that "[t]he Framersof the Constitutionconsidered these principles [of stare decisis] to derive from the nature of judicial power,"60so that the court was constitutionallyrequired to give precedentialweight to one of its priorunpublishedopinions.Anastasoffs claimabout the meaningof the termjudicialpower, althoughit may seem innocuous,is very strong.It implies, for example, that an American lawyer around the time of the Framingwould have asserted that civil law tribunals,which did not have the common law doctrine of precedent,were exercisingsomethingother than judicial power.61The case cites no one who employed that usage of "judicial

58. Brutus,probablythe most penetratingAnti-Federalistcriticof the proposedconstitution'sjudicialsystem,expectedthatthe projectedfederalcourtswouldrelyon theirearlierdecisions.He painteda disturbingpicture,in whichthe courtswouldquietlyexpandfederalpower througha seriesof adjudicationsin low-profilelawsuits:

Theywillbe ableto extendthe limitsof the generalgovernmentgradually,andby insensibledegrees,and to accommodatethemselvesto the temperof the people.Their decisionson the meaningof the constitutionwillcommonlytake placein caseswhich arisebetweenindividuals,withwhichthe publicwillnot be generallyacquainted;one adjudicationwillforma precedentto the next,andthisto a followingone.

Letter of Brutusin the New YorkJournal (Mar. 20, 1788), in XVI JOHNP. KAMINSKI&

GASPARE J. SALADINO,THE DOCUMENTARYHISTORYOF THE RATIFICATIONOF THE CONSTITUTION434 (1986).

59.No. 99-3917EM,2000U.S. App.LEXIS21179(8thCir.Aug.22,2000).

60.Id. at *8.

61.Blackstonerecognizedthatjudiciallawmakingthroughthe rule of staredecisiswas a distinctivefeatureof the Englishcommonlaw.After summarizinghis discussionof customenshrinedinjudicialdecisionsas the "chiefcomer stoneof the lawsof England,"he explainedthat "[t]heRomanlaw,as practicedin the timeof it's [sic]liberty,paidalso a greatregardto custom; but not so muchas our law."1 WILLIAMBLACKSTONE, COMMENTARIES*73. For an example

of a civil law jurisdictionthat did not have the Englishrulesof precedent,Blackstonewould have hadto look no furtherthanthe northof the Kingdomof GreatBritain,whichas he recognizedhadits ownlegal systemdistinctfromthatof England.Seeid. at *98("[T]hemunicipalor commonlawsof Englandare,generallyspeaking,of no forceor validityin Scotland...."). In Blackstone'stime, Scotlanddid not have the Englishdoctrineof precedent.T.B. Smith,recountingthe historyof stare decisis in Scotland,describedthe Scottishapproachto judicial

It is highly unlikely that when the Constitution was adopted Americansbelieved that the principleof stare decisis was hard-wired into the concept of judicial power. There were norms of precedent, but they were principlesof general jurisprudence,no more fixed by the Constitutionthan is the law of admiralty.The next section elaboratesthis view.

C. TheSourceof CurrentRulesof Precedent

Norms of stare decisisthat the federal courtsfollow cannotplausibly be attributed to the Constitution itself. Nevertheless, those courtsclaimto follow such rules, and I am assumingthat stare decisis is partof the body of rules and principlesthatthe courtsare bound to apply on pain of being lawless.The rules of precedentmust be some kind of law.

One could reachwhatI will suggestis the correctanswerthrough process of elimination.As just discussed,it is very hard to find rules of precedent in the Constitution.69It would be even harder to find them in a treaty.And while the federal courtssometimes are obliged to follow the substantivelaw of a state, that state could not regulate their internal operations.70That leaves two possibilities. Norms of stare decisis could be general law (as it is now known, federal com-

mon law), or they could result from federal statutes. There is good reason to believe that most of what we know as the law of precedent

in federalcourtis generallaw,while some of it comes fromthe courts' readingof the applicablestatutoryrules.

GeneralLaw.Federalcourtssometimesfollow principlesof deci-

sion that are not constitutional,statutory,treaty-based,or found in the law of one of the United States or any foreign country.The right name of those principlesis a matterof some difficulty,but their existence is not. From their foundation,the federal courts have applied decisional principlesthat do not come from written federal law or from the states, for example, in the exercise of their admiraltyjuris-

69.SeesupraPartI.B.

70.SeeU.S. TermLimits,Inc.v. Thornton,514 U.S. 779,802 (1995) (statingthat the Con-

stitutionpreventsthe statesfromimposingcongressionalqualificationsadditionalto those in its text;suchauthorityis not withinthe states'pre-TenthAmendment"originalpowers");Hanna

v.Plumer,380U.S. 460,463-64(1965)(holdingthatin a civilactionin federalcourtwherejurisdiction rests on diversityof citizenship,service of processshall be made pursuantto Federal

CivilRule of Procedure4(d)(1), not accordingto statelaw);M'Cullochv. Maryland,17 U.S. (4 Wheat.)316,436 (1819)(explainingthatthe stateslackpower,by taxationor otherwise,to con-

trol the operationsof the constitutionallaws enacted by Congressto implementthe powers vestedin the nationalgovernment).

latter approachinvolves generallaw in the sense in which I am using the term.I will use the term generallaw to emphasizethat the norms involved are authoritativeand binding on the courts and hence, although in some sense made by judges, are not made just as judges please.

Dominantjudicialunderstandingsof the place of general law in the American legal hierarchyhave changed over time. Admiraltyis the leading example. In exercising their admiraltyjurisdiction,the federal courts have always employed legal rules and standardsthat are not necessarilythe law of any state or foreigncountryand that do not come from writtenfederal law. That is as true today as it was in 1795. At least since SouthernPacific Co. v. Jensen,76however, admiraltylaw has been treated as federal law for purposesof the Supremacy Clause.77It was not so treated during the nineteenth century. Rather,it had the same status as the generalcommerciallaw:federal courts would apply it pursuantto choice of law rules, but it did not overrideinconsistentstate law, and state court decisions based on it were not subjectto reviewin the SupremeCourtof the United States undersection 25 of the JudiciaryAct, whichgave the Courtappellate jurisdictiononly over federalquestioncases.78For presentpurposes,it is unnecessaryto make much of this development,because I will be consideringnorms of precedent only as they are applied by federal courts.Hence, the status of those normsrelativeto state law is an issue thatneed not be addressed.

Norms of generallaw have several featureswhich are illustrated by the law of admiralty.First,generallaw normsare unwritten,which follows from their status as neither state, foreign, nor writtenfederal

76.244U.S. 205 (1917).

77.Seeid. at 215.

78."A case in admiraltydoes not, in fact, arise under the Constitutionor laws of the United States."AmericanIns. Co. v. Canter,26 U.S. (1 Pet.) 511,545 (1828).The olderunder-

standingof the generallaw is presentedin lucid detail in WilliamA. Fletcher, The General CommonLawand Section34 of theJudiciaryAct of 1789:TheExampleof MarineInsurance,97 HARV.L. REV.1513(1984).JudgeFletcher'sleadingexampleof the statusof generallaw is the

law of marineinsurance,whichas he explainswas foundto be withinthe admiraltyjurisdiction firstby JusticeStoryon circuit,see De Loviov. Boit,7 F. Cas.418,444 (C.C.D.Mass.1815)(No. 3776),andeventuallyby the SupremeCourt,InsuranceCo. v. Dunham,78 U.S. (11 Wall.)1, 35

(1870).Whilemost Americanjudgesin the firstpartof the nineteenthcenturyappearto have agreedthat a uniformbody of marineinsurancedoctrinewouldbe valuable,the statusof ma-

rine insuranceas a subjectof the generalcommerciallaw presenteda seriousobstacle:because

uniformitycouldbe achievedonly by consciouscoordinationamongindependentjurisdictions. SeeFletcher,supra,at 1558-75.

law.79Second, they are authoritativerulesin the sense that the courts are bound to applythemjust as they are bound to applyfederalstatutes or state law.8?Third,despitethe second feature,they are to some extent judge-madein that the norms are formulatedat a sufficiently high level of abstractionas to require the exercise of some policy judgmentin their application.81The second and thirdfeaturesof gen- eral law are no more and no less inconsistentwith one anotherin this context thanin any other.Even in the absenceof staredecisis,courts make law in the sense with whichwe are familiarwhen they resolve a concrete dispute on the basis, for example, of a federal statute, the gaps in whichthey fill in partby referenceto theirviews of desirable policy.82When a legal norm has gaps, there is no contradictionbetween sayingthat it is bindingon the courtsin that they fail of their dutyin not applyingit, and thatit admitsof judiciallawmakingin that the courtsproperlyfill the gaps in partby referenceto their views as to proper results. A norm that a court felt free simply to disregard

79. Oneleadingsourcenotes:

The "general"maritimelaw in the UnitedStates,insofaras it remainsunmodifiedby

statute,contains,then,two parts.First,is the corpusof traditionalrulesandconcepts foundby our courtsin the Europeanauthorities.... Secondare rulesand concepts

improvisedto fit the needs of thiscountry,including,of course,modificationsof the firstcomponent.

GRANTGILMORE& CHARLESL. BLACK,JR., THE LAWOFADMIRALTY47 (2d ed. 1975);see also Fletcher,supranote 78, at 1517("Thelawmerchant,usuallydescribedas partof the com-

mon law, was the generallaw governingtransactionsamongmerchantsin most of the trading nationsof the world.The maritimelaw was an even more comprehensiveandeclecticgeneral law thanthe lawmerchant.").

80. It maybe moreexactto say thatthe generallawappliedin federalcourtswasandis as authoritativeandas bindingas the ordinaryprivatelaw of most statesinsofaras thatlaw is not containedin statutorycodificationsI. agreewithJusticeHolmesthat those rulesare authorita-

tive law,andthattheyaremoreabsolutelybindingandless subjectto judicialrevisionthe more abstractlythey are conceived.Perhapsa state'shighestcourtcouldproperlyrejectthe doctrine of consideration,butit stillwouldbe lawlessforone to rejectthe veryprincipleof the obligation of contract,holdingthatprivatebargainsare not to be enforcedby the government.Admiralty

law wasandis bindingin thisfashion,andindeedHolmes'saphorismaboutmolarandmolecu- larmotionswasdeliveredin Jensen,an admiraltycase.SeeSouthernPac.Co.v. Jensen,244U.S.

205,221(1917)(Holmes,J., dissenting).

81. Probablythe most prominentrecentexampleof a case in whichthe courtsreshaped

unregulated

some point no decisioneitherway is dictatedby the law and the law is accordingly

partlyindeterminateor incomplete.If in suchcasesthejudgeis to reacha decision...

he mustexercisehis discretionandmakelaw for the case insteadof merelyapplying alreadypre-existingsettledlaw.

H.L.A. HART,THECONCEPT OFLAW272(2d ed. 1994).

would not be bindingand in any applicationwould be wholly judgemade because its application would result entirely from judicial choice and not at all from legal compulsion.Fourth,they originatein custom, both private and judicial.The law of admiraltycomes from the practices of maritime traders and the courts of maritime countries.83Finally, general law is like state law in that it is hierarchically inferiorto writtenfederal law. When Congress,in an exercise of one of its enumeratedpowers,legislateson an issue previouslycontrolled by generallaw, Congress'sruleprevails.84

The normsof precedentas the federal courtsknow them consist mainly of unwrittenprinciplesthat are characterizedas bindinglaw but that reflect substantialjudicialinput, custom,and practice.Those are the hallmarksof general law. As one would expect, given its origins, courts and commentatorshave understoodthe generalprinciple of stare decisis, the high-level abstractionfrom which the particular normsof precedentare developed, as a principleof the commonlaw. Justice Curtis,for example, referredto "the maxim of the common law, stare decisis."85Of the same opinion was the venerable Judge Zephaniah Swift of Connecticut, pioneer of American treatise-

83. Gilmoreand Black discussthe originsof maritimelaw in customin their treatise.See GILMORE& BLACK,supranote 79, at 3-11.ChiefJusticeMarshallin AmericanInsurance,just afterstatingthat admiraltyis not federallaw,see supranote 78, explainedthat "thelaw, admiraltyandmaritime,as it hasexistedfor ages,is appliedby our Courtsto the casesas theyarise." AmericanIns. Co., 26 U.S. (1 Pet.) at 546. More recentlythe SupremeCourthas noted that "[m]aritimelaw, the commonlaw of seafaringmen, providesan establishednetworkof rules anddistinctionsthatare practicallysuitedto the necessitiesof the sea."United Statesv. Webb, Inc.,397U.S. 179,191(1970).

84. The Jensenepisodeis the best-knownadmiraltyexample.Jensenheld thatbecauseadmiraltywas federallaw, the states could not replaceits traditionalrules of employerliability witha no-faultsystemof workers'compensation.SeeJensen,244 U.S. at 217-18.The Courtalso

rejectedCongress'sattemptsto authorizestate legislationin the field, see Washingtonv. W.C. Dawson& Co.,264U.S. 219,227-28(1924);KnickerbockerIce Co.v. Stewart,253U.S. 149,164 (1920),butthe formercasemadeclearthatthe problemwasone of delegation,not of the immu-

tabilityof maritimelaw in the face of legislationby the appropriatelegislature,see W.C.Daw- son & Co.,264 U.S. at 227-28.In response,Congressadoptedits own schemeof workers'com-

pensation,whichabrogatedthe traditionaladmiraltyrulesabout employerliability.See Longshoremen's& HarborWorkers'CompensationAct, ch. 509, 44 Stat. 1424 (1927) (codifiedas

amendedat 33 U.S.C.??901-950.(1994)).

85. Carrollv. Lesseeof Carroll,57 U.S. (16 How.) 275,286 (1850)(concludingthatdictaof a statecourtis not controllingas precedent).In similarfashion,ChiefJudgeDrakeof the Court

senting);see also Palmer'sAdm'rv. Mead,7 Conn.149, 158 (1828) ("Thereis not in the com- mon law a maximmore eminentlyjust, and promotiveof the publicconvenience,than that of

staredecisis.").

writing.86Norms of this sort are not intrinsicallyresistantto congressionalmodification.

2. Stare Decisis and the StatutoryStructureof the Courts of Appeals.The rules of staredecisisin the federalcourtsof appealsare slightly complicated. Those tribunals can decide cases in panels, generallyconsistingof threejudges,or in en bancsittingsthatinclude a largergroup,usuallyall of the judges in regularactiveservice.87All the courtsof appealsmaintainthatvery differentrulesof staredecisis apply dependingwhether the court is sitting as a panel or en banc. Panels are absolutely bound by the courts' precedents. En banc sittings are not. The different circuits may disagree as to the precedentialweight that the en banc courtis to accordto priorpanel opinions, and some of them may have no explicit doctrine on this subject. All, however, agree that a panel precedent does not absolutelybind an en bancsittingthe wayit bindsanotherpanel.88

Panel opinionsmusthave less than absolutelybindingforce in en banc sittingsif those sittingsare to performthe functionof enablinga majority of the judges in regular active service to determine the court's doctrine.Were en banc courts bound by panel precedent as panels are bound,they would be able to establishcase law only when deciding questionsof first impression.That would interferesubstantiallywiththe full court'scontrolof doctrine.

Accordingto the SupremeCourt,the principlethat a majorityof the full courtof appealsis supposedto be able to controlits doctrine is derivedfrom the statutessettingup the courtsof appealsand enabling them to sit both in panels and en banc. In 1960, the Supreme Court faced the question whether, under the structuralstatutes as they then stood, a circuitjudge'svote shouldbe countedin an en banc proceedingwhen the judge had taken senior status between the en

86.See 1 ZEPHANIAHSWIFT,A DIGESTOFTHELAWSOFTHESTATEOFCONNECTICUT9

(1822)("[Sltaredecisisis a fundamentalmaximof the commonlaw.").

87.See 28 U.S.C.? 46 (1994).All but two of the courtsof appealssit eitherin three-judge panels or all together.The FederalCircuitis authorizedto sit in "panelsof more than three

judges,"id. ? 46(c), anden bancsittingsof the NinthCircuitnormallyconsistof the chiefjudge andtenjudgeschosenby lot. See9THCIR.R. 35-3.

88. See MOOREET AL., supranote 43, 1 To say thaten bancsittingsare not 134.02[1][c].

absolutelyboundas panelsis not to saythattheyaresubjectto no ruleof staredecisis.The D.C.

Circuit,for example,takesthe positionthatwhenit sits en banc,its existingpanelprecedentis entitledto some respectas a matterof staredecisisbutis not absolutelybinding.See,e.g.,Criti-

cal MassEnergyProjectv. NuclearReg. Comm'n.,975F.2d871,876 (D.C.Cir.1992)(en banc) (holdingthatwhileone panelmaynot overruleanother,an en banccourtmayoverrulea panel on a questionof lawif the earlierdecisionwasfundamentallyflawed).

banc hearingand entry of judgmentby the full court.The Courtsaid no. It found the entry of judgmentto be the crucialmoment, and at that moment the seniorjudge was not a judge in regularactive service. He thereforeshould not have participatedin shapingthe court's doctrine because "the evident policy of the statute was to provide 'that the active circuit judges shall determine the major doctrinal trendsof the futurefor theircourt."'89

The federaljudiciary'scurrentrules of precedent cannot plausibly be attributedto the Constitution.Most of them are generallaw, or

in the currentphrase,federalcommonlaw. At least one of them, says the Supreme Court, is deduced from statutorypolicy. General law and statutes are not, by reason of their place in the legal hierarchy, immunefromcongressionalalteration.

II. THE SOURCE AND SCOPE OF CONGRESSIONALPOWER OVER

STARE DECISIS

Whether Congresshas power to legislate concerningprecedent in federal court depends on the answers to two further questions. Firstis whetherthere is an affirmativegrantof authoritythat fits the bill. Second is whether any seeming grant is fool's gold because it would be inconsistentwith the separationof legislative and judicial power. The naturalobjectionto congressionalpower over stare decisis is the concern that such a power would enable the legislatureto control doctrineand case outcomes so as to constitutean invasion of

the judicialsphere.

As this part explains,it is not difficultto sketch a congressional power over stare decisis that flows naturallyfrom the Necessary and Proper Clause and that does not threaten judicial independence: Congressmay act on the basis of the courts' own traditionalcriteria for fashioningrulesof precedentandmust,like the courts,respectthe principle that norms of stare decisis must be adopted on their systemic merits,not in orderto produceparticularoutcomes.Moreover, a power over stare decisis limited by this principle would pose no threatto the judicialpower. Rules of stare decisis are justifiedon the

basis of their systemiceffects, for example,with respectto stabilityin the law, and emphaticallynot with respect to their effects on particu-

lar doctrinaldisputes.To adopt or apply a rule of precedentin order

Judge Clark'sdissentingopinion in the lower-courtdecisionunderreview,American-Foreign S.S.Corp.v. United States,265F. 2d 136,155(2d Cir.1958)).