Book Review

Citation(2017) 29 SAcLJ 596
Date01 December 2017
Published date01 December 2017

1 The common law system of law relies on case law to interpret legislation as well as to declare what the law is where statute law is silent on the point, and the doctrine of stare decisis, the deference accorded to precedents, is fundamental to the system.2 For something so fundamental, it is extremely complex and enigmatic.3 Even as they prize predictability and consistency, lawyers fear the grip of the dead hand of law, as precedent is sometimes regarded. Given the rigorous debate about the use of precedent today, one might forget that the principle of stare decisis was not as always as strict as it is today.4 The important first question was raised by Theodore Benditt when he wrote:5

Is the principle of precedent a legal rule that is binding on all courts within a legal system that recognises precedent, or [is it], for at least some courts, simply a practice which they are free to ignore as they see fit? The principle of precedent could logically, be a practice, a tradition carried on by the courts. But in English and American law it is not.

2 When Michael J Gerhardt wrote The Power of Precedent,6 he began with these words:7

When the 81st – or the 181st – justice of the United States Supreme Court writes an opinion on an issue about which his predecessors have written, does he care about what they wrote? Does he feel absolute freedom to write whatever he pleases, as if he were writing on a blank slate? Does he merely manipulate the Court's precedents to support his preferred result, or does he defer to what his predecessors wrote on the subject before him? Does he, or should he, care about what his colleagues or successors think about what he writes?

And on the state of literature about precedents, Thomas G Hansford and James F Spriggs II had this to say:8

The political science literature, however, manifests a significant disconnect between this common understanding of the importance of law and the state of knowledge regarding how law develops … Indeed, only a handful of studies directly seek to explain legal development at the Court, and even they provide somewhat inconsistent and potentially contradictory answers.

Settled Versus Right: A Theory of Precedent (“SVR”) offers a partial, but important answer to the question posed.

3 Paying deference to stare decisis or applying precedent is more than just balancing a respect for past decisions and keeping an eye on the future just to be relevant; the doctrine of stare decisis would be a whole lot less problematic if it were the one rule that governs the entire realm, but that is not the case. Embedded in stare decisis is the rule that each decision may be overruled if there is justification for it. Understanding how the two rules work in tandem is the complex problem of the rule. When the words, “stare decisis” are used, it is usually to emphasise the positive aspect of the doctrine even though the rule it stands to maintain is challenged almost as frequently as the doctrine is invoked. It is the tension between the doctrine and the challenges to it that creates instability in the judicial decisions when, ironically, the doctrine is intended to establish predictability and stability in law.

4 SVR is an attempt to disentangle the messiness in the way the US Supreme Court9 approaches constitutional law. Much of the disagreement among the justices concern the principles of constitutional interpretation. Randy Kozel begins with a study of the two sources of precedent – horizontal, which is the previous decisions of the same court; and vertical, which is the previous decisions of a superior court. This book focuses on the Supreme Court and so is more concerned with the application of horizontal precedent. In the first chapter of his book, Kozel discusses the two factors that affect the court's decision to follow or reject a precedent. The first is the scope of the precedent, and the second is its strength. Kozel observes that the Supreme Court as well as lower courts tend to take a “capacious view of precedential scope”. English courts and jurists tend to adopt a stricter reading of precedents by limiting their precedential scope. As Neil Duxbury warned, “stare decisis will be undermined where the distinction between ratio decidendi and obiter dicta is blurred”.10 After establishing the boundary of a precedent's scope, the next exercise is to determine the strength of that precedent because that may ultimately determine whether the court will follow it. It is certainly not enough, in Anglo-Saxon jurisdictions, to find that a previous decision was wrongly decided. In his confirmation address US Chief Justice John Roberts explained, “[i]t is not enough that you may think the prior decision was wrongly decided. That really doesn't answer the question. It just poses the question”.11 And the question is, “[n]otwithstanding that, should the court follow or overrule that precedent”? Throughout the book, Kozel will return to that question, and the difficulties posed by the pervasive interpretative disagreements in the court. Although couched in interpretative terms, the underlying question is, as Kozel sees it, “[h]ow does a court determine whether it is more important for the law to be settled or right”?12

5 Kozel is neutral as to whether it is better for the law to be settled or right, but he clearly sees the importance of precedent from the point of view of judicial economy and resource conservation: “[i]f judges could not treat some issues as settled, they might be obliged to spend immense amounts of time revisiting foundational issues over and over again”, and, citing Benjamin Cardozo, the court will not “do society's

work if it eyed each issue afresh in every case that raised it”.13 Deference to precedent is also a disavowal of judicial arrogance when the court bows to the wisdom of others. The harder question, as Kozel says, “is whether judges should put the principle into practice by standing by precedents they believe to be wrong”. He discusses examples of when it might be better to have status quo than to reject a precedent because a judge believes that precedent to be wrong. Tax cases and cases that have led society to conduct its affairs on the basis of a settled rule are instances for restraint.

6 Mindful that the court faces no threat of reversal should it decline to follow precedent, Kozel points to matters that may constrain the court. He probably had in mind the standing of the court when he wrote: “[o]verturning precedent without good reason risks subjecting a court's decision to criticism for being outcome oriented or ad hoc. Hasty or ill-explained overrulings might lead to ‘a diminution in esteem within the legal profession, if not in the eyes of the broader public’”.14 Precedent also provides common ground for the interpretation of the US Constitution15 even when the justices disagree. Kozel explains as follows:16

The Supreme Court fills out the constitutional framework by resolving disputes and issuing opinions. It provides guidance for future courts and for those who live under the law, making norms ‘thicker’ and rules of conduct clearer. It also provides a basis for...

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