Monday, August 25, 2008

Why Federal Courts . . .Part 5

Part 5, Justification #3: Judges Need to Select The Proper Case As Vehicle to Announce A Principle Of Common Law Which Limits Its Misuse By Lawyers.

This justification is the most peculiar of the lot and to the extent I can determine is advocated largely by Judge Kozinski of the Ninth Circuit. His thesis is that by selecting the proper case to articulate a doctrine of common law one can minimize the improper use of opinion by lawyers to achieve a result unintended by the judges articulating that opinion.

There are a number of problems with this justification. First, research has demonstrated that judges are simply unable to predict which cases are likely to have long term precedential impact. See: Foa, Pamela, “A Snake in the Path of The Law: The Seventh Circuit’s Non-Publication Rule” 39 U Pitt Law Rev. 309 (1977-78). Thus the facts of the case you treat as non-precedential may have the most profound unintended consequences.

Second, there are costs to leaving an area of law unclear waiting for the perfect case. Any idea what the perfect case looks like?

Third, it is hard to believe that a reasonably competent judge can not explain why a result can be distinguished from or is comparable to a prior decision. If he is troubled by the quality of his explanation, perhaps as Judge Arnold (first blog on this topic) noted, this more likely signals a cause for concern about the quality of the decision rather than its potential for misuse.

Finally, who is to say it is a misuse. Would Anastastoff have been misusing a case because she felt that if a prior party was entitled to a refund even though the IRS received the application after the due date which was mailed before the due date that she was entitled to the same result if she mailed her application before the due date?

Seems to me she was simply asking for equal treatment under the rule of law.

-Larry Salibra
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