The Flubs that Bind: Stare Decisis and the Problem of Indeliberate Doctrinal Misstatements in Appellate Opinions

Speak to enough lawyers (especially litigators) about their experiences grappling with binding appellate case law in their jurisdictions, and a significant number of them will complain about statements in appellate case law that patently contradict prior precedent, incorrectly articulate legal standards, or otherwise mangle the doctrine in an area. The image of courts as deliberative doctrine-producing machines ignores the reality that certain statements in judicial opinions might not have been carefully, deliberately constructed. Often, the result is harmless. But in some instances, doubt about the deliberateness of dubious doctrinal statements in judicial opinions can become an unavoidable problem for litigants and judges in future cases. Conventional lawyering tools—distinguishing cases factually or characterizing statements as dicta—are ill-suited to address language in judicial opinions that sets out generalizable doctrine (rather than fact-bound conclusions about a particular case) that is central to the court’s analysis and yet difficult or impossible to square with logic or with preexisting statements of the same doctrine. The uncomfortable truth is that judges with enormous dockets can make drafting mistakes in articulating doctrine—not merely judicial “error” in the sense of issuing a decision that would be reversed—and can even do so in crucial portions of their opinions. It is, of course, usually impossible to know for sure whether some or all of those seeming misstatements were secretly deliberate. To be sure, it is an appellate court’s prerogative to state the law in the manner of its choosing. But it is also eminently reasonable to presume, absent evidence to the contrary, that judges usually do not intend to create doctrinal contradictions within their jurisdictions without explanation. This Article explores the circumstances under which the best explanation for an apparent misstatement of doctrine is simply that it was uttered indeliberately as a result of insufficiently careful drafting. This Article then addresses whether indeliberate doctrinal misstatements in appellate precedent should enjoy the stare decisis effect that appellate decisions typically receive. A wide range of considerations—normative, pragmatic, and ethical—are relevant to that question. Top of mind among those considerations is recent criticism of stare decisis, including from members of the Supreme Court, based purely on disagreement with the conclusions the precedent reached. Next, in lieu of focusing on my own view of how best to balance the competing considerations, I explore empirically whether American lawyers as a whole have developed norms in this domain. Conventional wisdom might be that, absent the ability to distinguish a case or characterize a statement as dicta, the statements of appellate courts are strictly binding within their jurisdictions—and, at a minimum, that lawyers must bring all relevant binding appellate court doctrine to the attention of the judges deciding their cases. Based on my empirical research, however, the true picture is more complicated. This Article presents results from a nationwide study of practicing lawyers, showing that a substantial minority of lawyers feel no ethical obligation to raise an appellate court’s patently mistaken statements of doctrine, even when not dicta, and an even larger percentage of lawyers feel that lower courts should not follow such doctrinal misstatements. More broadly, it finds little consensus on these issues; in many portions of the study, the lawyers’ responses did not differ significantly from a 50/50 split. That is, despite all the norms that are supposedly instilled in the legal profession, lawyers often show no significant tendency one way or the other on these questions—either to follow appellate doctrinal misstatements or to disregard them. That result is consequential not merely because lawyers’ presentation of issues to their clients and to courts shapes outcomes, but also because nearly all American judges were formerly practicing lawyers themselves. Finally, I briefly reflect on why, in light of the study’s results and the normative, pragmatic, and ethical considerations discussed, lawyers and judges should become more comfortable identifying and disregarding doctrinal misstatements and legal educators should prepare their students to confront them

Priorities and Public Safety II: Adopting Effective Probation Practices

Outlines the structural problems of Massachusetts' corrections, the role of probation in public safety, best practices in community supervision in other states, and the elements of an evidence-based probation system, including inter-agency collaboration

User's manual for the Shuttle Electric Power System analysis computer program (SEPS), volume 2 of program documentation

The Shuttle Electric Power System Analysis SEPS computer program which performs detailed load analysis including predicting energy demands and consumables requirements of the shuttle electric power system along with parameteric and special case studies on the shuttle electric power system is described. The functional flow diagram of the SEPS program is presented along with data base requirements and formats, procedure and activity definitions, and mission timeline input formats. Distribution circuit input and fixed data requirements are included. Run procedures and deck setups are described

MECHANISMS OF DNA DOUBLE-STRAND BREAK REPAIR PATHWAY CHOICE

Regulation of double-strand break (DSB) repair pathway choice is vital for genome maintenance because each pathway has different mutational consequences. One key decision point in DSB repair pathway choice is resection, a process forming 3’-single stranded DNA (ssDNA) overhangs. Resection is required for repair via homologous recombination (HR) and theta-mediated end joining (TMEJ) and inhibits repair by nonhomologous end joining (NHEJ). Resection as well as other intermediates in DSB repair, such as chromosome breakage, have been difficult to measure because of their obligatorily transient nature. However, it is essential to understand these processes to fully appreciate how cells protect against genome instability. Here, we developed assays to measure chromosome breakage, resection, large deletions (100s of base pairs), and repair via all three pathways in real time. A novel role for Polq (an essential gene for TMEJ) in promoting resection was identified as well as a potential mechanism for increasing gene targeting efficiency (Chapter 2). These repair kinetic assays were then combined with our newly improved cellular TMEJ assays, that are fully dependent on Polq, to define the mechanistic role of poly(ADP)ribose polymerase (PARP) in TMEJ. We found TMEJ is only partially reliant on PARP via PARP’s promotion of resection. This incomplete epistasis explains how combined inhibition of PARP and TMEJ has an additive effect on viability in HR-deficient cells (Chapter 3). The final chapter of this dissertation investigates the functional importance of the structural domains of DNA polymerase theta (the protein produced from Polq). We found the helicase-like domain, but not the central domain, is required for cellular TMEJ. This study provides the foundation for more specific separation-of-function mutants and further defining the mechanism of TMEJ. Collectively, these chapters increase our understanding of DSB repair pathway choice and TMEJ. The new assays provide improved tools for studying previously difficult repair intermediates and outcomes. Their use will greatly expand our knowledge surround DSB repair and its applications in genome editing and cancer therapy.Doctor of Philosoph

Program manual for the Shuttle Electric Power System analysis computer program (SEPS), volume 1 of program documentation

The Shuttle Electric Power System (SEPS) computer program is considered in terms of the program manual, programmer guide, and program utilization. The main objective is to provide the information necessary to interpret and use the routines comprising the SEPS program. Subroutine descriptions including the name, purpose, method, variable definitions, and logic flow are presented

Expressions 2022

https://openspace.dmacc.edu/expressions/1038/thumbnail.jp