* Associate Professor, Emory University School of Law. J.D., Harvard Law School; B.A., M.A., Emory University. The author was a law clerk for the Hon. Richard S. Arnold, Eighth U.S. Circuit Court of Appeals, from 1989–1991. Thanks to Thomas C. Arthur, David J. Bederman, Harold J. Berman, Anita Bernstein, D. Price Marshall Jr., and Robert Schapiro for their helpful critiques of earlier drafts, and to Susan I. Jackson, a student at Emory Law School, for sharing her research.
1 Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot by No. 99–3917EM, 2000 U.S. App. LEXIS 33247 (8th Cir. Dec. 18, 2000) (en banc).
2 United States Courts, Judicial Business of the U.S. Courts: 1999 Annual Report of the Director, Supplemental Table S-3, at 49, available at http://www.uscourts.gov/judbus1999/ supps.html (last visited Jan. 7, 2001) [hereinafter Judicial Business].
3 See generally, e.g., Jane C. Ginsburg, Legal Methods 93 (1996) (“Given that . . . the precedential importance of a decision lies not in what the court says but in what it decides, why should courts forbid citation of any decisions?”); Martha J. Dragich, Will the Federal Courts of Appeals Perish if They Publish? Or Does the Declining Use of Opinions to Explain and Justify Judicial Decisions Pose a Greater Threat?, 44 Am. U. L. Rev. 757 (1995); Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions: a Reassessment, 28 U. Mich. J.L. Reform 119 (1994); William L. Reynolds & William M. Richman, The Non-Precedential Precedent—Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167 (1978).
4 Some judges also have been critical of this practice. See, e.g., County of L.A. v. Kling, 474 U.S. 936, 940 (1985) (Stevens, J., dissenting) (“For, like a court of appeals that issues an opinion that may not be printed or cited, this Court then engages in decisionmaking without the discipline and accountability that the preparation of opinions requires.”); Nat’l Classification Comm. v. United States, 765 F.2d 164, 172–75 (D.C. Cir. 1985) (Wald, J., separate statement).
5 Anastasoff, 223 F.3d at 898.
6 On this point Anastasoff cites Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 595–602 (1987). Anastasoff, 223 F.3d at 901 n.7. A related view is that the concept of the “rule of law” makes respect for precedent “indispensable.” Lewis F. Powell, Stare Decisis and Judicial Restraint, 1991 J. Sup. Ct. Hist. 13, 16 (1991).
7 In the two months following the opinion’s publication, for example, several articles appeared. See generally Steve France, Right to Cite, 86 A.B.A. J. 24 (2000); Steve France, Unpublished Opinions: Swift En Banc Review Expected of Case Treating Unpublished Opinions as Precedent, 69 U.S. L. Wk. 2227 (Oct. 24, 2000) [hereinafter France, Unpublished Opinions]; William Glaberson, Unprecedented: Legal Shortcuts Run into Some Dead Ends, N.Y. Times, Oct. 8, 2000, at 4–4; Kevin Livingston, 8th Circuit: Barring Citation of Unpublished Opinions Unconstitutional, The Legal Intelligencer, Aug. 25, 2000, at 4.
8 See, e.g., Tony Mauro, Judge Ignites Storm over Unpublished Opinions, Fulton County Daily Rep., Sept. 5, 2000; Evan P. Schultz, Gone Hunting: Judge Richard Arnold of the 8th Circuit Has Taken Aim at Unpublished Opinions, But Missed His Mark, Legal Times, Sept. 11, 2000, at 78.
9 See Harold Berman et al., The Nature and Functions of Law 484 (5th ed. 1996) (“In the later 19th century for the first time there developed the rule that a holding by a court in a [single] previous case is binding on the same court (or an inferior court) in a similar case.”); T.F.T. Plucknett, A Concise History of the Common Law 350 (5th ed. 1956); see also Frederick G. Kempin, Jr., Precedent and Stare Decisis: The Critical Years 1800–1850, 3 Am. J. Legal Hist. 28, 30 n.4 (1959).
10 Stare decisis is commonly used to refer to a strict practice of following precedent, and that is the sense in which I use it here—to distinguish the doctrine of stare decisis from the doctrine of precedent. I discuss this distinction in more detail in the text accompanying infra notes 109–111.
11 Guido Calabresi, A Common Law for the Age of Statutes 4 (1982). But see Harold J. Berman, The Origins of Historical Jurisprudence: Coke, Selden, Hale, 103 Yale L.J. 1651, 1652–53 (1994) (noting that historical jurisprudence “predominated . . . in the United States in the late nineteenth and early twentieth centuries and has played an important role in the thinking of American judges and lawyers down to the present day . . . . Indeed, it is the foundation of the English and American doctrines of precedent”).
12 E.M. Wise, The Doctrine of Stare Decisis, 21 Wayne L. Rev. 1043, 1046–47 (1975).
13 Anastasoff, 223 F.3d at 904.
14 In several contexts, the Supreme Court has indicated it is willing to defer to consistent, historical practice in interpreting constitutional requirements without inquiring too deeply into questions of original understanding. See generally, e.g., Printz v. United States, 521 U.S. 898 (1997); New York v. United States, 505 U.S. 144 (1992); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992).
15 Anastasoff v. United States, 223 F.3d 898, 903 (8th Cir. 2000).
16 See Ginsburg, supra note 3, at 80.
17 See Berman et al., supra note 9, at 367; Schauer, supra note 6, at 599–600.
18 Karl N. Llewellyn, The Bramble Bush 49 (1960). Or as noted by Pound: “The tables of cases distinguished and cases overruled tell a significant story.” Roscoe Pound, The Theory of Judicial Decision, 36 Harv. L. Rev. 940, 943 (1923).
19 See Berman et al., supra note 9, at 469. Berman states:
In “common law” countries judicial opinions are a primary source of law and prior judicial decisions are binding precedents in subsequent cases. In “civil law” countries, on the other hand, the primary source of law is legislation and courts are bound not by precedents but by provisions of comprehensive codes of criminal law, civil law, and procedure . . . . In “common law” countries the starting point for judicial reasoning is said to lie in past decisions.
Id. (emphasis provided).
20 Anastasoff, 223 F.3d at 899.
21 Christie v. United States, No. 91–2375MN, 1992 U.S. App. LEXIS 38446 (8th Cir. Mar. 20, 1992) (per curiam) (unpublished). One irony in this debate is that opinions designated “not for official publication” are widely available on the internet and through electronic databases such as Lexis and Westlaw. Although not officially published in the federal reporter systems, these opinions are clearly “published” in the sense that they are readily available to the public.
22 Although Christie was designated not for publication, it was no mere one-line affirmance. The opinion provided a sufficient recitation of the facts and the court’s reasoning process that even Anastasoff’s counsel conceded that Christie was clearly on point.
23 The full text of the rule is: “Unpublished opinions are not precedent and parties generally should not cite them. When relevant to establishing the doctrines of res judicata, collateral estoppel, or the law of the case, however, the parties may cite any unpublished opinion.” 8th Cir. R. 28A(i) (emphasis provided).
24 This practice, that a precedent may not be overruled by a panel but only by the whole court sitting en banc, is common but not uniform practice among the circuits. In some circuits, the practice is specified by court rule. See, e.g., Fed. Cir. R. Local Rule 35(a)(2) (“Although only the court en banc may overrule a binding precedent, a party may argue, in its brief and oral argument, to overrule a binding precedent without petitioning for hearing en banc. The panel will decide whether to ask the regular active judges to consider hearing the case en banc.”); 6th Cir R. 206(c) (“Reported panel opinions are binding on subsequent panels. Thus, no subsequent panel overrules a published opinion of a previous panel. Court en banc consideration is required to overrule a published opinion of the court.”). In the Eighth Circuit and others, the practice is not specified by court rule but is a matter of convention, developed in prior case law. See Brown v. First Nat’l Bank, 844 F.2d 580, 582 (8th Cir. 1988) (“[O]ne panel of this Court is not at liberty to overrule an opinion filed by another panel. Only the Court en banc may take such a step.”). In the Seventh Circuit, although there is no formal requirement for precedent to be overruled only by the court sitting en banc, a panel may not publish a decision that overrules a prior precedent unless it is circulated to all active members of the court for the opportunity to rehear en banc. 7th Cir. R. 40(e).
25 Anastasoff, 223 F.3d at 899-900 (citations omitted).
26 Id. at 904.
27 Anastasoff relies upon Article III, Section 1, Clause 1: “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const. art. III, � 1, cl. 1, quoted in Anastasoff, 223 F.3d at 900 n.3.
28 Anastasoff, 223 F.3d at 900.
29 Id. at 901-02.
30 Id. at 901.
31 See, e.g., Paul D. Carrington, Butterfly Effects: the Possibilities of Law Teaching in a Democracy, 41 Duke L.J. 741, 754 (1992) (“Official reporters of judicial decisions were in place in most American jurisdictions in 1815, decades before such a function was known to England, France or Germany.”); Kempin, supra note 9, at 30 n.4.
32 Anastasoff, 223 F.3d at 902.
33 Kempin, for example, defined the “modern” doctrine of stare decisis in the United States as “a general policy of all courts to adhere to the ratio decidendi of prior cases decided by the highest court in a given jurisdiction . . . As applied to the highest courts in each jurisdiction, however, stare decisis is purely a matter of policy.” Kempin, supra note 9, at 28–29 (emphasis provided).
34 See Polly J. Price, Term Limits on Original Intent? An Essay on Legal Debate and Historical Understanding, 82 Va. L. Rev. 493, 500 n.22 (1996).
35 Paul Brest has described “moderate originalism” as follows: “The text of the Constitution is authoritative, but many of its provisions are treated as inherently open-textured. The original understanding is also important, but judges are more concerned with the adopters’ general purposes than with their intentions in a very precise sense.” Paul Brest, The Misconceived Quest for Original Understanding, 60 B.U. L. Rev. 204, 204–05 (1980).
36 See Jack Rakove, Original Meanings xiii-xvi (1996); Price, supra note 34, at 496.
37 St. George Tucker, 4 Blackstone’s Commentaries: With Notes of Reference to the Constitution and Laws of the Federal Government of the United States and of the Commonwealth of Virginia 359 (1803).
38 Federal Farmer No. 15 (1788), quoted in 4 Philip B. Kurland & Ralph Lerner, The Founders’ Constitution, 233 (1987).
39 Brutus No. 12 (1788), quoted in Kurland & Lerner, supra note 38, at 236.
40 5 U.S. (1 Cranch) iii–iv (1804) (Preface by William Cranch).
41 See generally, e.g., The Federalist Nos. 78, 79 (Alexander Hamilton).
42 “The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const. art. III, � 1, cl. 1.
43 U.S. Const. art. III, � 2, cl. 1.
44 See Kurland & Lerner, supra note 38, at 225 (emphasis provided).
45 For instance, the “authority” of prior cases as precedent could have a range of meanings, any of which may be consistent with the historical evidence presented by the court. Precedent could be used as a guide to decision, as illustrating the nature of the law on the question involved, or even as mere evidence of a “true” law without any independent binding authority. See Kempin, supra note 9, at 30–31, 33.
46 See David Dunn, Note, Unreported Decisions in the United States Courts of Appeals, 63 Cornell L. Rev. 128, 141–45 (1977) (describing cases).
47 I note, but do not consider in this article, the interesting parallels between the issues in Anastasoff and the recent controversies over the practice of vacating opinions following post-trial or post-appeal settlement. See, e.g., Jill E. Fisch, Rewriting History: The Propriety of Eradicating Prior Decisional Law Through Settlement and Vacatur, 76 Cornell L. Rev. 589 (1991); Judith Resnik, Whose Judgment? Vacating Judgments, Preferences for Settlement, and the Role of Adjudication at the Close of the Twentieth Century, 41 UCLA L. Rev. 1471, 1501–04 (1994); Daniel Purcell, Comment, The Public Right to Precedent: A Theory and Rejection of Vacatur, 85 Cal. L. Rev. 867 (1997).
48 4 Yeates 569, 575 (Pa. 1808).
49 See, e.g., Commonwealth v. Coxe, 4 Dall. 170, 192 (Pa. 1800) (“Stare decisis, is a maxim to be held forever sacred, on questions of property.”). The trend continues well into later parts of the nineteenth century. See Leavenworth County Comm. v. Miller, 7 Kan. 479, 540 (1871) (“These decisions have been published by legal authority, and have become rules of property, and precedents for future decisions.”).
50 4 Yeates at 575.
51 20 Johns. 483, 487 (N.Y. Sup. Ct. 1823).
52 See, e.g., Hart v. Burnett, 15 Cal. 530, 605 (1860) (quoting Lion, 20 Johns. at 487).
53 Smith v. Turner, 48 U.S. (7 How.) 283, 379 (1849). Typical also is the Alabama Supreme Court’s exposition in Hays v. Cockrell, 41 Ala. 75 (1867):
[T]his court has decided that the doctrine of Weems v. Bryan is a law of property, and has twice distinctly announced that it would not overrule that case, but suffer it to stand as an exposition of the law, according to which the people might act, and shape their transactions without apprehension. Men must be presumed to have acted in reference to it, and in reference to the assurance of its stability; property has been received, and delivered, and transferred . . . by many persons.
Id. at 90–91.
54 Smith, 48 U.S. at 379.
55 See, e.g., Dubuque v. Ill. Cent. R.R., 39 Iowa 56, 82 (1874) (“Oscillating decisions of a court of last resort tend to disturb the tenure of property and the rights of the people, and weaken confidence in the courts.”); State v. Baltimore & O. R. Co., 48 Md. 49, 98 (1878) (“The rule ‘stare decisis’ is one of the most sacred in the law . . . . Authorities established are so many laws, and receding from then, unsettles property, etc.”); Boon v. Bowers, 30 Miss. 246, 256 (1855) (“All questions having an important bearing upon titles to property, and which have, as in this instance, been once carefully considered, and solemnly settled by this court, ought not to be treated, as open for future investigation.”); Den ex Dem. Mickle v. Matlack, 17 N.J.L. 86, 101 (N.J. 1839) (“Stare decisis is the rule of law . . . essential to the repose of property.”).
56 Napier v. Jones, 47 Ala. 90, 90 (1872) (emphasis provided).
57 See generally Morton Horwitz, The Transformation of American Law, 1780–1860 (1977). For a description of the reigning paradigm and its various proponents, see Alfred L. Brophy, Reason and Sentiment: The Moral Worlds and Modes of Reasoning of Antebellum Jurists, 79 B.U. L. Rev. 1161, 1164–66 (1999) (reviewing Peter Karsten, Heart versus Head: Judge-Made Law in Nineteenth Century America (1997)).
58 10 U.S. (6 Cranch) 87 (1810).
59 See id. at 139.
60 See id.
61 See id. at 137.
62 See id.
63 10 U.S. at 87.
64 Id. at 135.
65 1 N.Y. Ch. Ann. 332 (N.Y. Ch. 1816).
66 Id.
67 E.g., Wynehamer v. People, 13 N.Y. 378 (N.Y. 1856).
68 68 U.S. (1 Wall.) 175 (1863).
69 Id. at 202–07; see Michael G. Collins, Before Lochner—Diversity Jurisdiction and the Development of General Constitutional Law, 74 Tul. L. Rev. 1263, 1269 (2000).
70 See Carrington, supra note 31, at 805. Congress provided for compensated emancipation of slaves in the District of Columbia, 12 Stat. 376, 538 (1861), and section four of the Fourteenth Amendment forbids compensation for slaves emancipated by the Thirteenth Amendment. Prior to emancipation, President Lincoln favored compensation for slave owners. See Eric Foner, Reconstruction 6, 74 (1988).
71 Dred Scott v. Sanford, 60 U.S. (19 How.) 393 (1856).
72 There are more state cases on this issue than federal, no doubt because state courts dealt with property issues far more frequently than did federal courts. For examples of federal cases emphasizing the link between stare decisis and property rights, see Rundle v. Del. & Raritan Canal Co., 55 U.S. 80, 93 (1852) (“The principles asserted and established by these cases, are, perhaps, somewhat peculiar, but, as they affect rights to real property in the State of Pennsylvania, they must be treated as binding precedents in this court.”), and Waring v. Clarke, 46 U.S. (5 How.) 441, 496 (1847) (Woodbury, J., dissenting) (“So far from disturbing decisions and rules of property clearly settled, I am for one strongly disposed to uphold them, stare decisis.”).
73 See Smith, 48 U.S. at 379 (argument of counsel) (“they have only to adhere to the just rules already laid down, to practice the great maxim which secures respect and renders certain the rights of property and life, Stare decisis.”); Coppinger v. Rice, 33 Cal. 408, 416 (Cal. 1867) (“The rule has become a rule of property, and to disturb it would produce an incalculable amount of mischief. If there was ever a case in which the doctrine of stare decisis should apply, it should here be applied.”); see also Taliafero v. Barnett, 1 S.W. 702 (Ark. 1886).
74 See, e.g., Webb v. Lafayette County, 67 Mo. 353, 368 (1878).
75 Fisher v. Prince, 97 Eng. Rep. 876, 876 (K.B. 1762).
76 See Price, supra note 34, at 496.
77 Grant Gilmore, The Ages of American Law 20–21 (1977).
78 I consider the “codification movement” to comprise the years between Jeremy Bentham’s offer to codify the common law in the United States, in 1811, and the end of the nineteenth century. By the end of the nineteenth century reformists had largely ceased to call for reducing the entire corpus of the common law to code form and focused instead on discrete areas for legislation. See Gunther A. Weiss, The Enchantment of Codification in the Common-Law World, 25 Yale J. Int’l L. 435, 501–15 (2000). Charles Cook’s discussion of the American codification movement focuses on the years 1820–1850. See generally Charles M. Cook, The American Codification Movement: A Study of Antebellum Legal Reform (1981).
79 Andrew P. Morriss, Codification and Right Answers, 74 Chi.-Kent L. Rev. 355, 355 (1999).
80 Charles Cook has categorized the various goals of competing groups of law reformers to include “moderate” and “radical” codifiers. See Cook, supra note 78, at 80, 83.
81 Id. at 74, 86–87.
82 Id. at 74.
83 Several states, including California, Montana, and Georgia, as well as the Dakota Territory (present-day North and South Dakota), adopted legislation in the mid-nineteenth century that codified large segments of the common law of those states. See Morriss, supra note 79, at 362–68.
84 See Cook, supra note 78, at 210. See generally Steven N. Subrin, David Dudley Field and the Field Code: A Historical Analysis of an Earlier Procedural Vision, 6 Law & Hist. Rev. 311 (1988); Steven N. Subrin, How Equity Conquered Common Law: The Federal Rules of Civil Procedure in Historical Perspective, 135 U. Pa. L. Rev. 909 (1987).
85 See Gilmore, supra note 77, at 19–25.
86 About ten years after the codification was enacted, an influential law review article argued that the Civil Code should not be the sole source of law, as it is in civil-law jurisdictions such as Louisiana. See generally John Norton Pomeroy, The True Method of Interpreting the Civil Code, 3 W. Coast Rep. 585 (1884). The article argued that judges should instead view the Civil Code, whenever possible, as merely a declaration of existing common-law rules, and interpret it using common-law precedents and customs. See id. The California courts expressly adopted this view in 1888, and in 1901, the California legislature confirmed this view by statute. See id.; see also Lewis Grossman, Codification and the California Mentality, 45 Hastings L.J. 617, 619–20 (1994).
87 See Stanford v. Smith, 159 S.E. 666, 667 (Ga. 1931) (characterizing statutory tort law provision as a “mere codification of common-law rules”); see also Jean Louis Bergel, Principle Features and Methods of Codification, 48 La. L. Rev. 1073, 1076 (1988) (considering state codifications to be “simple techniques of ‘consolidation’ or ‘restraint’”).
88 See Gilmore, supra note 77, 25–27, 69–74; Weiss, supra note 78, at 514; Shael Herman, The Fate and Future of Codification in America, 40 Am. J. Legal Hist. 407, 425 (1996).
89 At least this is the argument of Kempin. See Kempin, supra note 9, at 33.
90 See Kempin, supra note 9, at 42. This legislation may have been an attempt to protect the institution of slavery.
91 Id.
92 Id. at 43 n.46.
93 Gray v. Gray, 34 Ga. 499, 501 (1866).
94 See Weiss, supra note 78, at 511–12.
95 See Gilmore, supra note 77, at 69–70.
96 Robert Cover, for example, identified “slavish adherence to precedent” as among the elements of the existing judicial system attacked by codifiers. Robert Cover, Justice Accused: Antislavery and the Judicial Process 141 (1975).
97 304 U.S. 64, 78 (1938).
98 Id. at 78, 79–80, overruling Swift v. Tyson, 41 U.S. (16 Pet.) 1 (1842).
99 Erie, 304 U.S. at 78.
100 See generally United States v. Hudson & Goodwin, 11 U.S. (7 Cranch) 32 (1812) (holding that common law federal crimes are beyond the scope of Article III jurisdiction). Earlier, Justice Chase rejected common-law criminal jurisdiction in a circuit case, writing: “It is attempted, however, to supply the silence of the Constitution and Statutes of the Union, by resorting to the Common law, for a definition and punishment of the offence which has been committed: But, in my opinion, the United States, as a Federal government, have no common law.” United States v. Worrall, 2 U.S. (2 Dall.) 384 (Chase, Circuit Justice 1798).
101 See Laurence H. Tribe, American Constitutional Law 115 (1978).
102 See Horwitz, supra note 57, at 9–16.
103 33 U.S. (8 Pet.) 591, 658 (1834).
104 See generally Tony Freyer, Harmony & Dissonance: The Swift & Erie Cases in American Federalism (1981).
105 Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1276 (1996) (emphasis supplied).
106 See William A. Fletcher, The General Common Law and Section 34 of the Judiciary Act of 1789: The Example of Marine Insurance, 97 Harv. L. Rev. 1513, 1517–18 (1984).
107 See id.
108 For example, the Blackstonian view was that precedent need not be followed “where the former determination is most evidently contrary to reason . . . . For if it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law.” 1 William Blackstone, Commentaries *69–70.
109 See Gilmore, supra note 77, at 62–63; see also Neil Duxbury, Patterns of American Jurisprudence 141 (1997).
110 Harold Berman, for example, has said: “Not only is stare decisis not absolute but it also has no clear meaning . . . . [T]he ratio decidendi of a case is never certain.” Berman et al., supra note 9, at 484.
111 In a recent study, two authors conclude that even under a “liberal” version of stare decisis, United States Supreme Court Justices “have a prima facie duty to conform to the Court, but that obligation can be overridden if they offer a cogent reason for so doing.” Saul Brenner & Harold Spaeth, Stare Indecisis: The Alteration of Precedent on the Supreme Court 1946–1992, at 1 (1995).
112 See, e.g., Pavesich v. New England Life Ins. Co., 50 S.E. 68 (Ga. 1905); Roberson v. Rochester Folding Box Co., 64 N.E. 442 (N.Y. 1902). Although these cases are reported early in the twentieth century, and so do not precisely fit my general discussion of the late nineteenth century, they are good examples of a consistent “method” for the common law despite differing understandings reflected in the two cases about substantive result from following precedent. Both opinions go to great lengths to show continuity of the present case with past cases—they simply disagree about the results of the inquiry into precedent.
113 See Calabresi, supra note 11, at 4; Gilmore, supra note 77, at 19-25; Wise, supra note 12, at 1045–47.
114 See Berman et al., supra note 9, at 469.
115 Roger Traynor, Comment on Paper Delivered by Charles D. Breitel, in Legal Institutions Today and Tomorrow 48, 52 (1959).
116 Most of these rules date back no earlier than the mid-1960s. “In 1964, the Judicial Conference of the United States suggested that federal courts limit their number of published opinions to increase efficiency.” Jenny Mockenhaupt, Assessing the Nonpublication Practice of the Minnesota Court of Appeals, 19 Wm. Mitchell L. Rev. 787, 789 (1993). See also the 1973 report of the Advisory Council on Appellate Justice, Standards for Publication of Judicial Opinions, which became the model for the majority of federal and state appellate courts. Advisory Council on Appellate Justice, Standards for Publication of Judicial Opinions 18–20 (1973) [hereinafter Advisory Council Report]; Mockenhaupt, supra, at 790–91(considering the report to be the “seminal document in the movement toward an official policy of limiting publication”).
117 For a recitation of recent statistics on the volume of appeals in federal courts, see Richard S. Arnold, Essay, Unpublished Opinions: A Comment, 1 J. App. Prac. & Process 219, 221–22 (1999), which finds the increased volume a “serious problem.”
118 See, e.g., Fed. Cir. R. 47.6(b) (“An opinion or order which is designated as not to be cited as precedent is one unanimously determined by the panel issuing it as not adding significantly to the body of law. Any opinion or order so designated must not be employed or cited as precedent.”); 5th Cir. R. 47.5.4 (“Unpublished opinions issued on or after January 1, 1996, are not precedent.”).
119 See Judicial Business, supra note 2, at 49.
120 See, e.g., Mockenhaupt, supra note 116, at 788.
121 Anastasoff v. United States, 223 F.3d 898, 904 (8th Cir. 2000) (“Such decisions may be eminently practical and defensible, but in our view they have nothing to do with the authoritative effect of any court decision.”).
122 See Charles E. Carpenter, Jr., Essay, The No-Citation Rule for Unpublished Opinions: Do the Ends of Expediency for Overloaded Appellate Courts Justify the Means of Secrecy?, 50 S.C. L. Rev. 235, 241–43 (1998). The 1973 Report of the Advisory Council for Appellate Justice recommended that appellate courts reduce the number of published opinions out of concern for rising caseloads. Advisory Council Report, supra note 116, at 19. “A variety of criteria for choosing which cases are worthy of publication have been established by various bodies in an attempt to define those that are ‘important’ enough to publish.” Carpenter, supra, at 241–42.
123 For example, Llewellyn wrote that the doctrine of precedent is “Janus-faced.” In other words, “it is not one doctrine, nor one line of doctrine, but two, and two which, applied at the same time to the same precedent, are contradictory of each other.” See Llewellyn, supra note 18, at 68. Llewellyn also wrote that “the available leeway in interpretation of precedent is . . . nothing less than huge.” Karl N. Llewellyn, Some Realism About Realism—Responding to Dean Pound, 44 Harv. L. Rev. 1222, 1253 (1931).
124 See generally, e.g., Jerome Frank, Law and the Modern Mind (1930); Felix Cohen, Transcendental Nonsense and the Functional Approach, 35 Colum. L. Rev. 809 (1935).
125 See Joseph William Singer, Legal Realism Now, 76 Cal. L. Rev. 465, 467 (1988) (reviewing Laura Kalman, Legal Realism at Yale: 1927–1960 (1986)).
126 To cite a contemporary view of precedent, Richard Posner has written that precedents “are not ‘the law’ itself,” but merely “essential inputs into the predictive process.” Richard A. Posner, The Problems of Jurisprudence 227 (1990). It is not precedent that “controls” so much as how one “chooses to read the precedent.” Id. at 95. “[T]he key to the decision is precisely that choice, a choice not dictated by precedent—a choice as to what the precedent shall be.” Id.
127 See Jeremy Bentham, A Fragment on Government 19–20 (J.H. Burns & H.L.A. Hart eds., 1988).
128 Karl Llewellyn, The Common Law Tradition: Deciding Appeals 75–92 (1960).
129 See, e.g., Reno v. ACLU, 521 U.S. 844, 870 (1997) (referring to “emphatically narrow holding” in prior case).
130 See, e.g., Stenberg v. Carhart, 120 S. Ct. 2597, 2617 (2000) (Stevens, J., concurring) (referring to Roe v. Wade’s “central holding”); Dickerson v. United States, 120 S. Ct. 2326, 2342 (2000) (Scalia, J., dissenting) (“It is not a matter of language; it is a matter of holdings. The proposition that failure to comply with Miranda’s rules does not establish a constitutional violation was central to the holdings of Tucker, Hass, Quarles, and Elstad.”).
131 See, e.g., Apprendi v. New Jersey, 120 S. Ct. 2348, 2353 (2000) (referring to prior case, “the court concluded that those doubts were not essential to our holding”).
132 See, e.g., United States v. Gaudin, 515 U.S. 506, 519 (1995) (“That case is not controlling in the strictest sense.”).
133 See generally Earl M. Maltz, Some Thoughts on the Death of Stare Decisis in Constitutional Law, 1980 Wis. L. Rev. 467 (1980).
134 See Powell, supra note 6, at 14, 16.
135 The IRS subsequently abandoned its previous position based on Christie, announcing acquiescence in the “mailbox” rule. On December 18, 2000, the Eighth Circuit vacated the panel opinion in Anastasoff as moot, on the ground that the IRS had paid the taxpayer’s claim. Anastasoff v. United States, No. 99–3917EM, 2000 U.S. App. LEXIS 33247, at *2 (8th Cir. Dec. 18, 2000) (en banc).
136 Judge Alex Kozinski of the Ninth Circuit Court of Appeals reportedly criticized the ruling on this ground. “It is a fallacy to think having more out there is better. More garbage is not better . . . .” Quoted in Glaberson, supra note 7, at 4-4.
137 Judge Arnold noted:
It is often said among judges that the volume of appeals is so high that it is simply unrealistic to ascribe precedential value to every decision. We do not have time to do a decent enough job, the argument runs, when put in plain language, to justify treating every opinion as a precedent. If this is true, the judicial system is indeed in serious trouble, but the remedy is not to create an underground body of law good for one place and time only. The remedy, instead, is to create enough judgeships to handle the volume, or, if that is not practical, for each judge to take enough time to do a competent job with each case. If this means that backlogs will grow, the price must still be paid. At bottom, rules like our Rule 28A(i) assert that courts have the following power: to choose for themselves, from among all the cases they decide, those that they will follow in the future, and those that they need not.
Anastasoff, 223 F.3d at 904.
138 See Weisbart v. United States, 222 F.3d 93 (2d Cir. 2000). The court’s opinion in Anastasoff stated: “We express no view on whether we would follow Weisbart if it were not for the conclusive effect of Christie.” Anastasoff, 223 F.3d at 905 n.15.
139 Professor Arthur Hellman has even suggested that “[a]llowing lawyers to cite unpublished opinions is the best way of policing the courts’ use of the practice.” Quoted in France, Unpublished Opinions, supra note 7, at 2229.
140 See Arnold, supra note 117, at 220.
141 For example, judicial power animates the restrictions upon courts from entertaining “political questions” and otherwise exercising legislative power. See generally Tribe, supra note 101, at 71. Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177–78 (1803), may be best viewed as an interpretation of judicial power in its claim for the power of judicial review. Although along with the various abstention doctrines, the source of constitutional authority or restraint may come from the structure and function of the Constitution as a whole rather than a specific textual intent in the phrase “judicial power.”
142 Roger J. Traynor, The Well-Tempered Judicial Decision, 21 Ark. L. Rev. 287, 290 (1967).
143 Benjamin Cardozo, The Nature of the Judicial Process 150 (1921).
144 Anastasoff, 223 F.3d at 904.
145 See Ginsburg, supra note 3, at 123.
146 See generally Richard A. Posner, A Reply to Some Recent Criticisms of the Efficiency Theory of the Common Law, 9 Hofstra L. Rev. 775 (1981); Richard A. Posner, The Economic Approach to Law, 53 Tex. L. Rev. 757 (1975).
147 See Richard A. Posner, Savigny, Holmes, and the Law and Economics of Possession, 86 Va. L. Rev. 535, 542–43 (2000). Holmes wrote:
[T]he process which I have described has involved the attempt to follow precedents, as well as to give a good reason for them. When we find that in large and important branches of the law the various grounds of policy on which the various rules have been justified are later inventions to account for what are in fact survivals from more primitive times, we have a right to reconsider the popular reasons, and, taking a broader view of the field, to decide anew whether those reasons are satisfactory.
Oliver Wendell Holmes, The Common Law (Mark DeWolfe Howe ed., Harv. Univ. Press 1963) (1881).
148 Anastasoff, 223 F.3d at 904.
149 Id. at 904–05.
150 Id. at 905.
151 505 U.S. 833 (1992).
152 Id. at 854.
153 Id.
154 Id. (internal quotations omitted).
155 Id. (internal citations omitted).
156 See James C. Rehnquist, Note, The Power That Shall Be Vested in a Precedent: Stare Decisis, The Constitution and the Supreme Court, 66 B.U. L. Rev. 345, 346 (1986).
157 See United States v. Gaudin, 515 U.S. 506, 521 (1995).
158 Casey, 505 U.S. at 864.
159 See Arnold, supra note 117, at 226 (suggesting that failing to follow precedent is equivalent to “legislative power, which can be exercised whenever the legislator thinks best, and without regard to prior decision.”).
160 Treating like cases alike is a traditional justification for the doctrine of precedent. See Brenner & Spaeth, supra note 111, at 4–5. Justice Douglas remarked that “there will be no equal justice under law if a negligence rule is applied in the morning but not in the afternoon.” William O. Douglas, Stare Decisis, 49 Colum. L. Rev. 735, 736 (1949).
161 “It is revolting to have no better reason for a rule of law than that . . . it was laid down in the time of Henry IV.” Oliver Wendell Holmes, The Path of the Law, 10 Harv. L. Rev. 457, 469 (1897).
162 Marbury v. Madison, 5 U.S. (1 Cranch) 137, 137 (1803).
163 Id. at 177.
164 See generally, e.g., Henry Paul Monaghan, Stare Decisis And Constitutional Adjudication, 88 Colum. L. Rev. 723 (1988).
165 426 U.S. 833 (1976).
166 469 U.S. 528 (1985). For a description of the cases in this series, see Gerald Gunther & Kathleen M. Sullivan, Constitutional Law 207–11 (13th ed. 1997).
167 See Brown v. Board of Ed., 347 U.S. 483, 494–95 (1954), overruling Plessy v. Ferguson, 163 U.S. 537 (1896).
168 See, e.g., Patterson v. McLean Credit Union, 491 U.S. 164, 175 n.1 (1989) (“As we have said, however, . . . it is unnecessary for us to address this issue because we agree that, whether or not Runyon was correct as an initial matter, there is no special justification for departing here from the rule of stare decisis.”) (internal citations omitted). Patterson addressed an issue of statutory interpretation decided in Runyon v. McCrary, 427 U.S. 160 (1976).
169 See Berman et al., supra note 9, at 469.
170 See, e.g., Ark. Const. of 1836, art. VI, � 1 (1873).
171 For example, North Carolina’s 1778 “reception statute,” N.C. Gen. Stat. � 4–1 (1999), provides: “All such parts of the common law as were heretofore in force and use within this State, or so much of the common law as is not destructive of, or repugnant to, or inconsistent with, the freedom and independence of this State and the form of government therein established, and which has not been otherwise provided for in whole or in part, not abrogated, repealed, or become obsolete, are hereby declared to be in full force within this State.”
172 See Glaberson, supra note 7, at 4–4.
173 Ironically, the California Supreme Court’s decision in this case, denying the petition for review, is a “decision without published opinion.” Schmier v. Sup. Ct. of Cal., No. S087534, 2000 Cal. LEXIS 4434 (May 24, 2000).
174 Quoted in Glaberson, supra note 7, at 4–4.