1. Anonymous - May 8, 2008 at 11:57 pm

   http://www.law.harvard.edu/faculty/workshops/climenko/FosterPaper.pdf

2. Orin Kerr - May 9, 2008 at 12:28 am

   Off the top of my head, I can think of two reasons.

   First, there is dramatic disagreement as to methods of interpretation, not only among different Justices and judges but for individual justices or judges in different types of cases.

   Second, legal realists understand that “methods of interpretation” are a label that masks a very complex process of how judges reach decisions. Applying stare decisis to the methods would thus end up requiring fealty to a label rather than to a substantive legal rule.

3. Daniel J. Solove - May 9, 2008 at 12:57 am

   Orin,

   Regarding reason #1, I agree, but there could be stare decisis rules for different types of cases. One of the purposes of stare decisis is to resolve certain questions institutionally so they don’t vary too much from case to case. So the Court has resolved that there’s an exclusionary rule under the Fourth Amendment. There might be some justices that wouldn’t have voted to find an exclusionary rule under the Fourth Amendment in the first place, but who nevertheless will accept the rule because of stare decisis. So one of the purposes of stare decisis is to resolve certain questions where there is disagreement, so that there is consistency over time.

   Of course, stare decisis is not perfectly binding — there are fudges and ways to stretch it, there are clever ways to distinguish older cases, and justices can push the law a little bit beyond old precedent in many cases. But stare decisis still does exercise a limiting function. And there’s a longstanding recognition of the value of that limiting function. So why wouldn’t such a limiting function be a good idea for interpretative method?

   Regarding your reason #2, this strikes me as one along the lines of “interpretative method really doesn’t do much work at all — it’s just elaborate window dressing.” While there is certainly quite a lot of flexibility within particular methods, would you go so far as to claim that these methods play absolutely no limiting or shaping role at all on how judges reach decisions?

   One could go further than just stare decisis for particular methods. For example, in addition to a stare decisis rule that judges should consider original intent in construing the Constitution, maybe there could also be a rule for when judges should rely upon particular sources, such as the Federalist Papers, etc. We could see a rather elaborate system of precedent developing for which method applies and how that method should be employed. Of course, there is no reason why such a system of precedent bind the Court to one method in all cases — there might be exceptions or different methods for different types of cases.

4. Orin Kerr - May 9, 2008 at 1:30 am

   Dan,

   I agree that you could come up with ways of trying to use stare decisis for such claims, but I only mean to say there’s a reasonable basis for the current approach.

   Consider also that your approach would require pretty high order agreement; most legal decisionmaking in group settings is in Cass Sunstein’s phrase an “incompletely theorized agreement.”

5. Anonymous123 - May 9, 2008 at 1:36 am

   I was also going to point to Sydney Foster’s paper. You should read it.

6. John C - May 9, 2008 at 11:38 am

   I tend to agree with Prof. Kerr’s number 2; “interpretive method stare decisis” would to me have a high probability of leading to an embarassing state of affairs whereby two judges using the “same” method of interpretation would come to diametrically opposed outcomes. So for instance, if Justice “S” were to construct an originalist argument for why the Eighth Amendment C&U Punishments Clause contains no proportionality principle, and a year later Justice “G” were to write an opinion stating that, based on her originalist research and reasoning, there was an indeed an understanding at the time that the Eighth Amendment contained a proportionality principle, I would say that such a state of affairs would be worse (from a legitimacy standpoint) than two judges applying different interpretive methods and coming to different conclusions. Same could go for any method of interpretation.

   Maybe this puts me in the “window dressing camp” in Prof. Solove’s view, but I’m not sure that it is as cynical as it might sound – I can just easily imagine such an outcome, and it seems to me, anyway, to be a more unsavory state of affairs than we have currently.

7. Daniel J. Solove - May 9, 2008 at 11:46 am

   John C,

   If what you say were the case, why would it be more unsavory than what currently goes on? If this is what judges would indeed do, then is your reason for keeping the current system just to cover up the ugly mess? It seems to me that both your and Orin’s objection to interpretive method stare decisis is that it would reveal just how ideological judicial decisions are. You or Orin don’t seem to be saying that the lack of interpretive method stare decisis prevents such divergence in judicial outcomes or prevents ideological judging. The argument seems to be that it would be too revealing of what really goes on. But why not reveal it? Is there any benefit in covering over it?

8. David W. - May 9, 2008 at 2:31 pm

   Dan,

   My colleague Nicholas Rosencranz at Georgetown wrote an article in 2002 arguing that Congress should draft and enact “Federal Rules of Statutory Interpretation.” Such Rules would codify certain techniques, tools, and methods of interpreting federal statutes and, he argues, improve legislative-judicial communication. See http://papers.ssrn.com/sol3/papers.cfm?abstract_id=748207

   I suspect that you woulnd’t like a legislative mandate for regularizing methods of statutory interpretation, but it’s an idea worth grappling with.

9. John C - May 9, 2008 at 2:37 pm

   Prof. S.,

   I think a real argument can be made from a legitimacy standpoint. In the absence of interperetive method stare decisis, judges must make an effort to construct an interpretive framework for their decisions, which operate (independent of the particular judge’s true reasons for rendering the decision) to communicate to the public that the decision was made objectively. And if deciding cases dispassionately is a goal of the judicial system (and I am assuming for these purposes that it is), having judges render decisions in the context of what they represent is the best way in which to interperet a constitutional provision is desirable. Maintaining the facade, as you say, may play a communicative role to students, lawyers, and society that decisions should be made according to objective interpretive principles, not partisan ideology.

10. Miguel Schor - May 9, 2008 at 4:20 pm

    I think the reason goes to the heart of what it means to say that judges make law. I think Karl Llewellyn’s description of the case system in the Bramble Bush is essentially correct. A court makes law only when it speaks to the question before it. The method of interpretation is not a question before the Court but only an aid to answering that question. So therefore there can’t be any stare decision when it comes to judicial methodology.

11. Jordan Connors - May 9, 2008 at 6:52 pm

    Hello, I think this is a very interesting post about the scope of stare decisis as applied to judicial methodology. I actually published a Note in the Columbia Law Review about that precise topic just last month. I argued that the Supreme Court treats some methodological decisions as having stare decisis effect (e.g., Chevron doctrine and some textual canons), but not others (e.g., use of legislative history). If you have a moment to look it over, I would be very curious to hear your thoughts.

    The citation is:

    Note: Treating Like Subdecisions Alike: The Scope of Stare Decisis as Applied to Judicial Methodology, 108 Colum. L. Rev. 681 (2008)

    Thank you,

    Jordan Connors

12. Patrick S. O'Donnell - May 10, 2008 at 9:56 am

    I like the provocative nature of this suggestion (and kudos to others who have thought along these lines), indeed, I’d like to think much more about it before having anything of merit to add to the above. But for now let me simply say that I think it represents an attempt to reduce the political to the legal and for this reason will not succeed and probably should not succeed. The various forms of existing legal argument as outlined by Dennis Patterson, for example (Patterson, Dennis, ‘Interpretation in Law,’ San Diego Law Review, Vol. 42, 2005 Available at SSRN: http://ssrn.com/abstract=702921) have historically invoked one *or more* of these interpretive models and thus they’ve become essential to the nature of legal argument qua legal argument. I believe the legal and political are inextricably intertwined in some instances in a manner that is not amenable to their clear demarcation. At least awareness of these models helps us determine philosophical, legal, and political presuppositions and assumptions, including their relation to democratic theories and values, and this goes some way in assessing the merits of legal reasoning and argumentation. Political pluralism is an integral feature of a liberal democratic polity, however much it pains us when our side is on the outside looking in. In short, while I believe, with Larry Solum if I’m not mistaken, in a strong deference to stare decisis, I’m skeptical and wary of attempts to cabin it within this form of methodological determinacy.

13. A.W. - May 12, 2008 at 9:01 am

    The official textbook reason why not is simple: only the result controls. Everything else is dictum.

    And frankly, i agree. When you decide something for all time, that isn’t in the direct interest of the parties, then courts make mistakes. And it isn’t fair to those who are interested and not allowed to speak. So only the result conrols. good.

14. Jordan Connors - May 13, 2008 at 2:37 pm

    A.W., your critique about parties interested in the suit proves too much. You could say the same thing about anything to which stare decisis applies.

    I also disagree with your holding/dictum distinction. The Supreme Court itself has said: “[w]hen an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.” Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996). So if a methodological decision is decisive in the outcome of a case, it seems that it should be given precedential effect just like any other decisive aspect of the case. Say a case turns on whether or not the court should consult legislateive history. If the Court takes a position on that, and it determines the outcome, that legislative history decision should bind the Court in future cases. This is not to say the Court could never treat legislative history a different way, but the Court would have to distinguish the previous case or come up with a sufficient justification to overturn it, just as they must do for other precedents.

15. Jordan Connors - May 13, 2008 at 2:38 pm

    A.W., your critique about parties interested in the suit proves too much. You could say the same thing about anything to which stare decisis applies.

    I also disagree with your holding/dictum distinction. The Supreme Court itself has said: “[w]hen an opinion issues for the Court, it is not only the result but also those portions of the opinion necessary to that result by which we are bound.” Seminole Tribe v. Florida, 517 U.S. 44, 67 (1996). So if a methodological decision is decisive in the outcome of a case, it seems that it should be given precedential effect just like any other decisive aspect of the case. Say a case turns on whether or not the court should consult legislative history. If the Court takes a position on that, and it determines the outcome, that legislative history decision should bind the Court in future cases. This is not to say the Court could never treat legislative history a different way, but the Court would have to distinguish the previous case or come up with a sufficient justification to overturn it, just as they must do for other precedents.

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