Precedent and Justice

Precedent is the cornerstone of common law method. It is the core mechanism by which the common law reaches just outcomes. Through creation and application of precedent, common law seeks to produce justice. The appellate courts\u27 practice of issuing unpublished, non-precedential opinions has generated considerable discussion about the value of precedent, but that debate has centered on pragmatic and formalistic values. This essay argues that the practice of issuing non-precedential opinions does more than offend constitutional dictates and present pragmatic problems to the appellate system; abandoning precedent undermines justice itself. Issuance of the vast majority of decisions as nonprecedential tears the justice-seeking mechanism of precedent from the heart of our common law system

Editorial: Un(precedent)ED

The 30th Volume of The Journal of Social Theory in Art Education is unprecedented, in many ways. First the theme is unprecedented, or, rather, Un(predecedent)ED. This typographical wordplay, quite common throughout the history of JSTAE, troubles habitual readings of the term, allowing for interpretations that open up possibilities, however brief, for new forms of research, theorizing and artmaking. These are just a few of the interpretations of the volume theme, which each of the authors addresses in a unique manner. Some approach the theme head on, while others choose a more oblique angle of analysis and exploration. Some deal with unprecedented events and actions, while others discuss historical examples, analyzing the development of precedence in art educational practice, and offering suggestions for novel forms of research, pedagogy, and artmaking

Precedent and Control in Investment Treaty Arbitration

This Article\u27s thesis is that, although arbitrators in investment treaty arbitration are not formally bound by precedent in the same manner as common-law judges, there is an informal, but powerful, system of precedent that constrains arbitrators to account for prior published awards and to stabilize international investment law. This informal system, however, imperfectly supports the relevant policy goals. It is additionally being tested by an increasing diversity of arbitrators, who are themselves facing pressures from investors and host States to meet conflicting demands. This Article proposes that the structure of investment treaty arbitration can absorb such stresses if: (a) the system of precedent is clarified and publicized to enable the global community to appraise awards and the arbitrators who render them; (b) investors and States exercise care in their selection of arbitrators; and (c) the community of international arbitrators exercises sufficient informal self-regulation and self-selection. This thesis is developed in three Parts. Part I discusses the concept and policies of precedent as it has developed in courts. Part II examines the extent to which these policies apply to investment treaty arbitration, and whether investment treaty arbitration has a system of precedent that promotes the relevant policy goals. Part III makes recommendations to further refine the system of precedent in response to emerging global trends, such as the economic growth of the People\u27s Republic of China and an increasing diversity of arbitrators from both developed and developing States

Precedent and Control in Investment Treaty Arbitration

This Article\u27s thesis is that, although arbitrators in investment treaty arbitration are not formally bound by precedent in the same manner as common-law judges, there is an informal, but powerful, system of precedent that constrains arbitrators to account for prior published awards and to stabilize international investment law. This informal system, however, imperfectly supports the relevant policy goals. It is additionally being tested by an increasing diversity of arbitrators, who are themselves facing pressures from investors and host States to meet conflicting demands. This Article proposes that the structure of investment treaty arbitration can absorb such stresses if: (a) the system of precedent is clarified and publicized to enable the global community to appraise awards and the arbitrators who render them; (b) investors and States exercise care in their selection of arbitrators; and (c) the community of international arbitrators exercises sufficient informal self-regulation and self-selection. This thesis is developed in three Parts. Part I discusses the concept and policies of precedent as it has developed in courts. Part II examines the extent to which these policies apply to investment treaty arbitration, and whether investment treaty arbitration has a system of precedent that promotes the relevant policy goals. Part III makes recommendations to further refine the system of precedent in response to emerging global trends, such as the economic growth of the People\u27s Republic of China and an increasing diversity of arbitrators from both developed and developing States

Originalist Theory and Precedent: A Public Meaning Approach

Much ink has already been spilled on the relationship of constitutional originalism to precedent (or, more specifically, the doctrine of stare decisis). The debate includes contributions from Randy Barnett, Steven Calabresi, Kurt Lash, Gary Lawson, John McGinnis with Michael Rappaport, Michael Paulsen, and Lee Strang, not to mention Justice Antonin Scalia—all representing originalism in some form. Living constitutionalism has also been represented both implicitly and explicitly, with important contributions from Phillip Bobbitt, Ronald Dworkin, Michael Gerhardt, Randy Kozel, and David Strauss. Some writers are more difficult to classify; Akhil Amar comes to mind. And there are many other contributions to the debate. Opinions range from the view that precedent should invariably prevail over the original public meaning of the constitutional text to the polar opposite view, that precedent must give way to original meaning in almost every case. Here is the roadmap. Part I provides a brief introduction to contemporary originalism. Part II describes the problem of precedent for originalism, emphasizing that the nature of the problem depends in part on our understanding of precedent. Part III offers some reflections on the question as to the constitutional status of the doctrine of horizontal stare decisis in the United States Supreme Court

The Evolution of Precedent

We evaluate Richard Posner's famous hypothesis that common law converges to efficient legal rules using a model of precedent setting by appellate judges. Following legal realists, we assume that judicial decisions are subject to personal biases, and that changing precedent is costly to judges. We consider separately the evolution of precedent under judicial overruling of previous decisions, as well as under distinguishing cases based on new material dimensions. Convergence to efficient legal rules occurs only under very special circumstances, but the evolution of precedent over time is on average beneficial under more plausible conditions.

Grains of Sand or Butterfly Effect: Standing, the Legitimacy of Precedent, and Reflections on \u3cem\u3eHollingsworth\u3c/em\u3e and \u3cem\u3eWindsor\u3c/em\u3e

One test of whether a scholarly work has achieved canonical status is to ask respected scholars in the field which works, setting aside their own, are essential reads. William Fletcher’s article, The Structure of Standing, now in its twenty-fifth year, would almost certainly emerge at the top of any such lists among standing scholars. And yet, while many at this conference have built upon Fletcher’s insights, there remains notable disagreement concerning standing doctrine’s normative foundations. The central dispute concerns whether standing doctrine should be celebrated as furthering a “private-rights,” or instead, condemned as thwarting a “public-rights,” adjudicatory model. In a series of works employing social choice theory, I have presented standing doctrine as furthering a private-rights adjudicatory model. In separate high-profile works, Professors Heather Elliott and Jonathan Siegel have criticized this account, claiming it rests on the “great myth” that the judicial lawmaking is inextricably tied to dispute resolution, with precedent creation merely an incidental byproduct. Instead, Elliott and Siegel contend that the federal judiciary, including especially the Supreme Court, has the primary responsibility of announcing constitutional rules, with case resolutions a justificatory vehicle for performing that task. Siegel further maintains that if, as the social choice model suggests, standing raises the cost to ideological litigants of timing the path of case law to influence developing doctrine, it is no more effective than tossing a “few grains of sand” into the gears of the judicial-lawmaking apparatus. In this Article I respond to these critiques and defend the social choice analysis of standing and the private-rights model on which it rests. First, these and other public-rights scholars fail to appreciate that the private-rights model enhances the normative legitimacy and durability of precedent. If the justification for creating precedent is the present favorable conditions of judicial staffing, then the arguments for respecting the resulting precedent erode when those conditions change, favoring those opposing the precedent. Second, these critiques misread the social choice model of standing to imply that relaxing its limiting conditions undermines the claim that with reasonable assumptions, even if there are no changes in Supreme Court staffing, in the disposition of cases below, in intervening precedent, and in the jurisprudential views of sitting justices, ideological litigants can effect substantive doctrine through favorable case orderings. The opposite is true: Relaxing these limiting conditions has the potential to enhance, not diminish, incentives to manipulate case orderings for maximal doctrinal effect. Third, and finally, expanding the social choice analysis to account for (1) delays in lower federal courts or state courts, (2) the results of changed judicial staffing on the Supreme Court, and (3) the bidirectional nature of constitutional and prudential standing rules more likely generates a butterfly effect, with substantial implications for developing doctrine, than an inconsequential tossing of sand into the works of developing precedent

A Patent Reformist Supreme Court and Its Unearthed Precedent

How is it that the Supreme Court, a generalist court, is leading a project of innovation reform in our times while the court of appeals established to encourage innovation is having its precedent stricken down time and again? This decade the Supreme Court has issued far more patent law decisions than in any decade since the passage of the Patent Act of 1952. In doing so, the Supreme Court has overruled the Federal Circuit in roughly threequarters of the patent cases in which the Supreme Court has issued opinions. In most of these cases, the Supreme Court has established rules that favor accused infringers over patent holders, and the result has been an era of patent litigation reform far more impactful than anything Congress has achieved. Scholars have observed that the Supreme Court tends to overrule Federal Circuit decisions that (1) impose rigid legal rules as opposed to flexible standards; (2) adopt special rules for patent law cases rather than applying general principles of law and equity applicable to all federal cases; and/or (3) fail to grant sufficient discretion to the district courts. This paper examines the twenty-eight Supreme Court opinions overruling the Federal Circuit since 2000 and quantifies their rationales to discover that, while these reasons are often invoked, the Supreme Court’s most common rationale is that the Federal Circuit has disregarded or cabined its older precedent from before the 1982 creation of the Federal Circuit, from before the 1952 Patent Act, and even from before the 20th Century. The Court has relied on this rationale in twenty-one of the twenty-eight cases. The paper then seeks to probe beneath the surface level patterns to discover the deeper roots of the discord between the Supreme Court and the Federal Circuit. Constitutional law scholars have observed that the Supreme Court’s policy preferences are the primary, unstated motivation behind its decisions. The Court writes opinions that rely on the flexible tools of precedent and stare decisis in order to implement its policy choices while maintaining its institutional reputation for neutrality. The Court does this by influencing precedent vitality; the Court selects which of its precedent to rely upon and augment and which of its precedent to distinguish and narrow. This process runs in direct conflict with the Federal Circuit, a court that was originally conceived and viewed by some of its members as a court intended to bring uniformity to patent law in a way that would reinvigorate patent rights. The Federal Circuit would implement the 1952 Patent Act in a way that would draw patent law out of the nineteenth century. But for the Supreme Court, the 1952 Act was a mere codification of patent law as developed by the courts for over a hundred years. Hence, the Federal Circuit seeks to influence precedent vitality at direct cross-purposes with the Supreme Court. The result of the Supreme Court’s project has been a new era of common law patent reform in favor of accused infringers, which is gaining momentum as the Supreme Court decides far more patent cases than it has since the passage of the Patent Act of 1952