February 9, 2011

How Precedent Works

There's a story I remember one of my professors in law school telling.  It's apocryphal and almost certainly fictional, but it makes a valid point about the practice of law.  It goes like this:
Two lawyers are arguing their case in front of a trial judge.  The plaintiff is suing the defendant because the plaintiff's train derailed when one of the defendant's cattle wandered on to the tracks.  During the defendant's argument, the judge asks, "counselor, you're familiar with X v. Y, aren't you?"

"Yes, your honor."

"Well, in that case, didn't the supreme court hold that a cow's owner is responsible if his cow wanders onto a set of train tracks and causes an accident?"

"Yes, your honor."

"Doesn't that mean you lose this case, then?"

"No, your honor."

"Explain why," says the judge, completely confused.

"Well, your honor, in X v. Y, the cow at issue was a Jersey.  My client's cow was a Guernsey, so I think it's distinguishable."
Such is the life of a lawyer, often times, searching for any basis upon which you can distinguish your case from the earlier case that otherwise dooms you to defeat.  Sometimes, the best you can do, is point to different cows.

While lawyers are free, and even required, to make such creative arguments, lower court judges are bound to apply the law as set forth by higher courts.  That's stare decisis, which basically means that if a court higher up the food chain has decided the issue before you, lower court judge, you are bound to apply it.  Doesn't matter whether you agree with it or not, just apply it.

The role of stare decisis is a subject running through several posts over at The Volokh Conspiracy in the wake of the more recent ruling against last year's health care reform law.  While a few of the Conspirators (some of whom have been involved in crafting the arguments used against the health care law), and many of the commentators, have applauded Judge Vinson's decision striking down the law, Orin Kerr has been a consistent and notable critic.

Not because of the end result - Kerr is no bleeding heart liberal - but because of how Vinson got there.  To summarize (and simplify), Kerr argues that while Vinson's result is the one a correct interpretation of the Constitution based on first principles supports, it runs contrary to current Constitutional doctrine as set forth by the Supreme Court.  Vinson made a mistake by not following current doctrine, even if his disagreed with it, because only the Supreme Court can make that kind of a change.

Kerr's taken a lot of flack over his position, but I think he's got the better of it (assuming his characterization of Vinson's opinion is accurate - I haven't read it).  That's evident in the most recent post over there, which points out a similar situation in the Virginia state courts.

In 2009, the US Supreme Court decided a case in which it held that a defense attorney provides ineffective assistance of counsel (a Sixth Amendment violation) if he does not advise his client of potential immigration consequences of entering a guilty plea.  Since then, state courts have been struggling to figure out how, and even if, that ruling should be applied to people already convicted and serving time.

Lawyers in Virginia found a potential means to do so in a writ of coram vobis, which allows courts to address "any clerical error or error in fact for which a judgment may be reversed or corrected" outside the regular appeals process.  It's one of those old writs that hangs around in musty old law books but doesn't have a lot of use these days.  Regardless, numerous cases have been percolating in the state for months.  In January, the state supreme court ruled that such an error could not be corrected via writs of coram vobis, leaving those defendants without a remedy for a potential Sixth Amendment violation.

In a surprise move, one trial-level judge in Virginia has simply decided not to follow the state supreme court's holding.  Rather than trying to find a way around a ruling with which he obviously disagreed, the court explained (at length) how the state supreme court got it wrong on the scope of coram vobis relief and concluded that it would not let the defendants be denied their only potential remedy for a Sixth Amendment violation.

There's a certain part of me, the public defender part, who wants to cheer the judge for getting the right result and not overlooking the lack of other remedies available to those defendants.  The rest of me, however, that tries to look at these things in a big picture kind of way, finds the decision pretty troubling.  After all, our entire judicial system is built upon the idea that lower courts have to follow the pronouncements of superior courts.

Can that be a pain in the ass?  You bet it is.  I've had several cases where the law in the Fourth Circuit was settled (and not in my client's favor, naturally) and had to admit that fact to a lower court.  Even in the Fourth Circuit, it binds itself to prior decisions unless overturned by the Supreme Court or the entire court sitting en banc.  That means I've had entire briefs filed in the Fourth Circuit that said, in essence, "I know you can't do anything about this, we're just stopping by on the way to the Supreme Court."  It can be frustrating.

But what's the alternative?  If lower courts could go off on their own and just ignore what binding precedent says, two things would happen.  First, the law would be in a constantly mixed up state, as parties could not rely on trial courts and mid-level appellate courts to apply settled law.  Finality and predictability are almost as important to the court system as getting to the right answer is.  Second, the appellate courts would be clogged with cases that needed to be corrected because they were decided based on a lower judge's whim or gut feeling rather than settled law.  That slows things down for parties with more contentions appeals and costs everybody more money.

So, ultimately, I think Kerr has the right of it here.  Lower courts should not be commended for "getting it right" at the expense of making rulings contrary to what established law from higher courts says the right answer it.  Maybe it means lengthy opinions in which lower judges explain their position and then concede that they have to rule the other way.  Flagging a issue that way seems infinitely preferable to everybody just doing their own thing in my eyes.

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