Why Federal Courts . . .Part 7

WHY FEDERAL COURTS DO NOT APPLY THE RULE OF LAW: Part 7: Epilogue

First, let me point out an error I made on the prior blogs. I stated that Anastasoff (blog 1) was seeking to have a prior unpublished opinion applied so she could obtain a refund. That is not correct; she wanted the prior case unpublished case ignored so she could get the refund. Although this error does not impair the point I was making that the essence of common law requires the similar treatment between similarly situated parties, I am a bit surprised no one pointed out the error.

There has been much written about this topic and you can access a lot of it at this site. Many of the articles have direct hotlinks to a pdf file of the article.

What is most troubling is the recent emergence of this practice in Britain, described by Lee Peoples in his article comparing the practices in the US and Britain. A review of the history of the development of the common law in this article incorporates a reference to the limitations that technology placed on publication. The obvious limitations of the oral decisions of judges and hardbound publication have largely been eliminated by technology. The justification for the emergence of this practice in England, efficiency, by saving lawyers judging time and money, basically the Alito position, Peoples describes as “a sharp break with centuries of tradition”.

Why now? Why with technology dramatically reducing both time and cost in seeking relevant cases are the courts so concerned about efficiency? Why didn’t they adopt a rule prohibiting the introduction of recollections of oral rulings and limit precedent to only the few cases they chose to be considered precedent centuries ago?

Perhaps more now than ever before the technology is doing to judges that which it is doing to the rest of us—making them more accountable for the quality and consistency of their decision making. We no longer have the luxury of arguing that we were not speeding at the time of the collision when the computer chip in our car says we were speeding.

More than any other branch of government, the judiciary is the most opaque—an in certain respects more dangerous. Perhaps it might not be able to reek cataclysmic havoc on us with the same overwhelming scale and intensity as the other branches—but such havoc has an important check—the fact that it impact is highly visible and strikes many at the same time, and therefore is far more likely to face strident opposition.

Judicial malfeasance is less visible, but its impact on those subject to its abuse is no less traumatic and in many cases the victims more defenseless.
In the web site I mentioned you will get many points of view, particularly from academics whose policy arguments often lack a critical perspective—that of looking down the barrel. For the criminal defendant who is denied a fair trial or the defendant unjustly forced to pay a judgment, efficiency may not seem to be a very important goal.

However, there is one major fallacy in the efficiency argument known to anyone who has tried a case and done a Lexis search on the law—the real cost of the litigation is generally not involved in preparation of your jury instructions or memorandum of law. It is in the development of the facts.

I have had the opportunity to find cases of judges with rulings contrary to the position they wanted to take with respect to my client, and watched them squirm when the ruling was brought to their attention—they do not like the feeling and that is why the non-publication—non citation rule exists.


-Larry Salibra
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