Overruling and the Instability of Law

We investigate the evolution of common law under overruling, a system of precedent change in which appellate courts replace existing legal rules with new ones. We use a legal realist model, in which judges change the law to reflect their own preferences or attitudes, but changing the law is costly to them. The model's predictions are consistent with the empirical evidence on the overruling behavior of the U.S. Supreme Court and appellate courts. We find that overruling leads to unstable legal rules that rarely converge to efficiency. The selection of disputes for litigation does not change this conclusion. Our findings provide a rationale for the value of precedent, as well as for the general preference of appellate courts for distinguishing rather than overruling as a law-making strategy.

Prospective Overruling and the Revival of ‘Unconstitutional\u27 Statutes

The Supreme Court\u27s decision in Planned Parenthood v. Casey reshaped the law of abortion in this country. The Court overturned two of its previous decisions invalidating state restrictions on abortions, Thornburgh v. American College of Obstetricians and Gynecologists and Akron v. Akron Center for Reproductive Health, and it abandoned the trimester analytic framework established in Roe v. Wade. At the time Casey was handed down, twenty states had restrictive abortion statutes on the books that were in conflict with Akron or Thornburgh and which were unenforced. In six of these states, courts had held the statutes unconstitutional. Almost as soon as the Casey ruling was announced, the campaign to secure enforcement of these restrictions began. Are these statutes good law, despite the fact that they were once in conflict with governing Supreme Court precedent (and in some cases had been judicially determined to violate women\u27s constitutional rights)? Alternatively, will they have to be re-enacted by the legislature to be enforceable? These questions highlight the revival issue. The revival issue arises when a court overrules a prior decision in which it had held a statute unconstitutional. (We will throughout this article refer to the first decision as the invalidating decision, and to the second decision as the overruling decision. ) Should the enforceability of a statute passed prior to the overruling decision be determined by reference to the invalidating decision--in which case the statute would have to be repassed to be in effect--or by reference to the overruling decision--in which case the statute would not have to be repassed? In other words, does the overruling decision automatically revive a previously unenforceable statute? The way in which the revival issue is resolved will thus determine whether, in light of Casey, previously unenforced statutes became enforceable without the need for any post-Casey legislative action. In addition to affecting what kind of abortion regulations are in effect in twenty states in the immediate wake of Casey, this determination has profound consequences for the kind of abortion regulations that will be in effect in these states in the future. Such long-term consequences reflect the fact that our governmental system is not one of pure majoritarianism and that the burden of inertia in our legislative process is heavy: as we will discuss, statutes on the books can stay on the books even if a current majority no longer desires them; in contrast, proposed statutes need supermajoritarian support to secure passage. Therefore, the starting point for future legislative action--such as whether pre-Casey abortion regulations are enforceable--influences the legislative action that in fact develops

The methodology of using precedents

This paper elucidates the common law doctrine of stare decisis and the methodology of using precedents, including the practice of distinguishing and overruling them

Exhuming the “Diversity Explanation” of the Eleventh Amendment

This essay, in a symposium honoring the scholarship of Ninth Circuit Judge William A. Fletcher, explores the “diversity explanation” of the Eleventh Amendment that he had advanced in articles while he was a UC-Berkeley law professor. That explanation, contrary to existing Supreme Court doctrine that heavily constitutionalizes state sovereign immunity from suits by private parties and foreign countries, would view the Eleventh Amendment as having solely to do with federal courts’ constitutional jurisdiction and nothing to do with states’ sovereign immunity. The essay notes the cleanness of interpretation provided by the diversity explanation, in contrast with the convoluted nature of current doctrine, and concludes that overruling of that doctrine would be warranted

Gamble v. United States: A Commentary

Under the judicially created dual-sovereignty exception, a defendant may be prosecuted by state and federal governments for the same conduct, due to the fact that the state and federal government constitute two separate sovereignties. The doctrine is grounded in the idea that each sovereign derives its power from independent sources—the federal government from the Constitution and the states from their inherent police power, preserved to them by the Tenth Amendment—and thus, each sovereign may determine what constitutes an offense against its peace and dignity in an exercise of its own sovereignty. Under this exception, defendants, by a single act, may violate the laws of both sovereigns and therefore be liable to prosecutions by both governments for the same conduct without their Fifth Amendment rights being infringed. This Commentary will proceed by examining the precedents behind the current separate-sovereigns doctrine and analyzing the anachronistic results they have produced. It concludes by arguing that although the Court will most likely not overrule the dual-sovereignty exception to the Double Jeopardy Clause, the Court should examine how the legal and factual underpinnings of the doctrine have changed and, ultimately, choose to overrule the exception

Exxon Mobil Corp. v. Allapattah Services Inc.

In diversity cases, only one plaintiff or class member must satisfy the amount in controversy requirement