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Precedential-deference bleg:

A higher court writes a decision which says X. Misreading the case, many lower courts claim that the decision means Y. Years later, the higher court faces the same issue. To what extent, if any, should the higher court's new decision take into account the reliance interests of the lower courts who said Y?

Is the obvious answer "none"? Justice Stevens and the other three dissenters in Heller did not think so. All nine Justices agreed that the Second Amendment secures an individual right, not a collective right. (The Justices disagreed about the scope of the individual right--in effect, a disagreement between X1 and X2.) Yet Justice Stevens in dissent complained at length that the Heller majority was harming the reliance interests of lower courts, and his litany of complaint about lower court decisions that were being disregarded included many "collective right" decisions from the lower courts.

I am working on a law review article on the subject. I would be grateful for any leads for law review articles which discuss what deference higher courts should give to a large body of lower court decisions on an issue of law, particularly when that body of decisions is based on the lower courts' controversial application of a precedent from the higher court.

J. Aldridge:
The Second Amendment secures an individual right or does it recognize the right?

As Paul Madison writes in his superb Heller rebuttal: Scalia writes like the "First and Fourth Amendments, codified a pre-existing right," and the "very text of the Second Amendment implicitly recognizes the pre-existence of the right and declares only that it 'shall not be infringed.'" Later, however, he declares "there seems to us no doubt" the Second Amendment "conferred an individual right to keep and bear arms." Which is it, recognition of a pre-existing right or does it directly confer the right?
7.18.2008 4:01am
Bill Poser (mail) (www):
So, a "reliance interest" is a kind of judicial promissory estoppel? Never heard of this one.
7.18.2008 4:15am
therut:
The sorry thing about the dissent is the USSC is the obvious bad player in the whole affair. They let the lower courts do a devious deed to the Constitution for years when they could have corrected the bad law a long time ago. They are the theif of our Right. They have no one to blame but themselves. I find no reason to let bad law stand just cause it has been bad for a long time. What a awful way to justify the taking away of a Constitutional Right. I boggles the mind. I have no respect for that way of thinking.
7.18.2008 5:11am
MR (mail) (www):
You might look at many of the Supreme Court patent cases - recently the court has routinely "corrected" the Federal Circuit in the Federal Circuit's interpretation of prior precedent. The Medimmune v. Genentech case comes to mind (which is more about dec. relief than anything else).
7.18.2008 8:34am
Edward Lunny (mail):
Perhaps it's naive foolishness on my part, but, if lower courts rely on improper or incorrect readings isn't the higher courts responsibilty to point out the lower court's error ? Do justice Stevens' opinions suggest that these "mistakes' be allowed to continue unabated ? If such mistakes are allowed to persist doesn't that subvert the original statute ? Perhaps some of those "wrong" decisions from the mid 19th century should be allowed to persist until today because lower courts relied on them ? I think that abject stupidity is to soft a criticism for that position.
7.18.2008 9:26am
Adam C:
"A higher court writes a decision which says X."

I think your hypothetical and your example diverge on a key point. What was the prior decision before Heller that said "there is an individual right." In your example, lower courts were not misinterpreting court precedent. They were either a) taking a first stab at interpreting the Constitution or b) expansively reading the one case that even touched on the issue.

Either way, they did not misread a case.

If they had, I think you would be right that there is no reason to give them deference. However, if they are a first stab at a Constitutional issue and almost all circuits have come down the same way, it is at least persuasive evidence for the point.
7.18.2008 9:54am
Kingsley Browne (mail):
I don't understand why any "reliance" by lower courts is relevant. We are not talking about a situation in which a longstanding misreading of the law has caused people to arrange their affairs in such a way that it would be unfair to correct the mistake -- for example, a longstanding but incorrect interpretation of the Internal Revenue Code that caused people to structure transactions in a particular way.

The reason that we might defer to prior mistakes on a reliance theory is that there has been detrimental reliance. I don't see how the lower courts' reliance was to their detriment. Courts made incorrect decisions; the Supreme Court pointed out the mistake; now courts make correct decisions (one hopes). But the courts are not "worse off" for the Supreme Court's failure to intervene for decades on the Second Amendment issue.

I would think it would require extraordinary (and perhaps inconceivable) circumstances for a longstanding narrow, but incorrect, interpretation of a constitutional right to prevail over a correct one simply because lower courts had gotten used to a different rule. New York Times v. Sullivan, anyone?
7.18.2008 10:45am
Houston Lawyer:
Since when has the Supreme Court cared that all the lower courts have been getting it wrong for 100 years or more? I don't think that this has ever constrained the action of the Supreme Court before. Hell, the liberal wing of the Supreme Court doesn't even care if the Supreme Court got it wrong before so long as the new rule is "progressive".
7.18.2008 10:48am
John (mail):
I don't think the interests of the lower courts is at all important. What is important is how society has or has not relied on some interpretation, and what overturning that understanding would do. Maybe that's just another way to say the same thing, but the emphasis should be on the citizenry, not the judges.
7.18.2008 10:49am
JosephSlater (mail):
In the employment discrimination field, a number of law review authors have argued that the Supreme Court has had to correct lower courts who were using legal rules that were too defendant-friendly. Big examples of this include (i) lower courts that required what was known as "pretext plus" after St. Mary Honors Center v. Hicks but before Reeves v. Sanderson Plumbing; and (ii) lower courts that required "direct evidence" of discrimination in "mixed motive" cases before the Costa case.
7.18.2008 11:05am
Toby:
John wins the thread,

but as for the "reliant" courts, why do I think of the old saw about the man who murders his parents, and then begs for mercy because he is an orphan.
7.18.2008 11:48am
Jim at FSU (mail):
Adam C:

The courts knew full well what Miller meant and they rejected it because it didn't let them reach the result they wanted. This trend started clumsily at first in a Puerto Rican handgun possession case that was challenged a year after Miller (Cases v. U.S., 131 F.2d 916 (1st Cir. 1942)) where the court recognized the holding of Miller, applied it to the facts and then sort of went "OH SHIT." They end up doing a little handwaving about WWII commando squads and then reject Miller because it leads to an overturning of the statute in question.

Subsequent federal cases took a cue from Cases in that they don't follow Miller either, but they don't bother examining the text of Miller at all because it might have made them look stupid. To summarize 60 years of caselaw, they baldly assert that Miller = collective right and diverge from there. This left us with a weird patchwork of reasons that people didn't have an enforceable right to own a gun, but the end result was that the federal courts were unresponsive to parties attempting to assert any 2nd amendment right.

The only thing this really demonstrates is that if we don't stay on the ball and keep pushing forward after Heller and inflicting inconvenience upon uncooperative federal judges, the courts will eventually roll this back to nothing like they did with Lopez and Morrison and Miller. IMO, enforcing Heller and getting it to yield useful caselaw and real results on the ground will be far more work than the Heller case itself was. Remember how long it took to get rid of Jim Crow.
7.18.2008 11:50am
Stuart Buck (mail) (www):
1) This theory of reliance is letting the tail wag the dog. The Supreme Court tells lower courts what the law is, not the other way around.

2) The very notion of "reliance" only makes sense if the person or institution affected has some future interest in maintaining the same state of affairs. So, for example, if parties draft a contract, or enter into a financing arrangement, or enter into an agreement that is presumed to be legal under antitrust law, or use technology to reduce emissions as currently required, etc., etc., etc., they are acting in reliance on existing law; thus, if the law suddenly changes, the parties are suddenly faced with the prospect of spending even more money going forward to establish new arrangements consistent with the new law.

Had lower courts been spending any money or resources in any fashion in "reliance" on the Miller? No, of course not. They had merely "relied" on Miller in the sense that lower courts always "rely" on what they believe to be controlling precedent, by citing it and making a decision in accordance with its principles. It's the fallacy of equivocation to treat that sort of "reliance" as the same sort of "reliance" that private parties have when they order their affairs so as to be legal under existing law.
7.18.2008 12:09pm
FWB (mail):
Thank God I am a PhD scientist. I am never constrained by precedence. In fact I am charged with questioning precedence in order to disprove or re-prove. Law should follow suit through a process that reproves or disproves prior decisions. Because courts all too often function through the prediliction of the judge(s), courts all too often "create" from air a range of claims about this or that. Judges are human and do not have a corner on wisdom. Nothing a judge decides should ever be taken as "gospel" without further review.

Part of the issue is caused by the belief by our public servants that they are in charge. To this I quote Blackstone:


For, whenever a question arises between the society at large and any magistrate vested with powers originally delegated by that society, it must be decided by the voice of the society itself: there is not upon earth any other tribunal to resort to.

Sir William Blackstone, Blackstone's Commentaries on the Laws of England, Book I, Chp3, pg.205/6


As to the Second and other amendments, anyone who can read English can recognize that nothing is granted by any of the amendments. Each and every one is written in language that evidences a prior existence of the Right. Not one says, such and such is granted. If the BoR were grants, then the "Rights" would not be "Rights" but would be reduced to privileges. "Rights" can never be granted by government. "Rights" are endowed on individuals by virtue of birth.

Only persons trying to run an agenda even consider claiming the amendments grant Rights. And the second especially is strong in its use of SHALL NOT BE INFRINGED. SHALL NOT is a command not a request. And since the Second Amendment is latter law, under the general operation of prior law/latter law, latter law overrides, circumscribes, superecedes, prior law, i.e. taxation power, commerce power, etc. The preamble to the BoR includes statements to clarify this. Thus the hedges by the judges concerning "governmental interests" are merely that, hedges with no footing in truth, predilections, agenda used to control the people.

Judges do whatever they please because the system has been manipulated by those delegated a little authority and rigged against the very people who provided our public srevants with that limited authority.
7.18.2008 1:21pm
therut:
This theory sounds like a child saying "But MOM everyone is doing it".
7.18.2008 1:23pm
33yearprof:
If Justice Stevens is correct, Plessy v. Ferguson should still be good law. After all, it was followed for 100 years.
7.18.2008 2:04pm
Dilan Esper (mail) (www):
I agree with Professor Browne. "Reliance" alone isn't sufficient, if the error is easily corrected.

But detrimental reliance could be relevant. Let's take it out of the contentious issue of the right to bear arms. Let's suppose a decision is rendered on an issue of trademark law. That decision is then misread by lower appellate courts, who hold for 50 years that a particular sort of trademark does not have to be registered to be enforceable against junior users. In fact, the best and most plausible reading of the Lanham Act is that the trademark SHOULD have to be registered.

Now, 50 years in, the Supreme Court has the 5 votes necessary to correct the erroneous interpretation. But if they correct it, 50 years worth of trademarks could be called into question, and people who thought they were following the procedure required by law (the one approved by the appellate courts) could end up losing their trademarks.

Now, should that kind of reliance count? I would say it should.

I don't think Stevens made the case that there was this kind of reliance in Heller. But I don't think the issue is as simple as saying you can never consider reliance in determining whether to correct erroneous interpretations of doctrine.
7.18.2008 3:19pm
Jim at FSU (mail):
Dilan Esper:
That is an outstanding explanation.

I still think we would have flat out lost Heller if not for the sea change in opinion and scholarship on the gun issue over the past 40 years or so.

Also, the new batman movie is awesome.
7.18.2008 4:17pm
bradley:
It would effect one of the planned parenthood stare decisis prongs. Un/fortunately that test was a post hoc rationalization that was barely ever cited, much less used afterwords.
7.18.2008 4:38pm
Roscoe B. Means:
"In the employment discrimination field, a number of law review authors have argued that the Supreme Court has had to correct lower courts who were using legal rules that were too defendant-friendly. Big examples of this include (i) lower courts that required what was known as "pretext plus" after St. Mary Honors Center v. Hicks but before Reeves v. Sanderson Plumbing; and (ii) lower courts that required "direct evidence" of discrimination in "mixed motive" cases before the Costa case."

On the other hand, it also seems that the Circuits have frequently perpetuated misreadings of Supreme Court decisions to favor plaintiffs in the same employment discrimination setting. One specific example has been the broad application of EEOC v. Commercial Office Products, where the Court held that the waiver of state jurisdiction, as it was done in that specific case, amounted to a termination of the state proceedings, so that what would otherwise have been an untimely filing with the EEOC was sufficient to preserve the claim. The Office Products opinion was quite fact-specific, and examined whether the waiver actually brought the state proceedings to a halt. Nothing in the opinion says that ANY waiver of state jurisdiction allows immediate EEOC filing, but the lower courts have applied the case that way over and over and over, so that state proceedings are now deemed to be "terminated" before they have even begun. The opinions of the Circuits have studiously avoided actual examination of what was said in the Office Products decision, and have allowed the EEOC and the state 706 agencies to re-write federal law with agreements that violate an express prohibition in the statute as enacted by Congress.

Eventually, "correct law" conflicts with stare decisis, and it's not unheard of for the Court to go with the latter. I think CBOCS v. Humphries from early this summer is an example of that.
7.18.2008 7:19pm
T. Reed (mail):
Read Thomas dissent in Kelo. Not on point, but close.
7.20.2008 5:56pm
markm (mail):

Dilan Esper:
... Let's take it out of the contentious issue of the right to bear arms. Let's suppose a decision is rendered on an issue of trademark law. ...

You've also taken it out of the realm of constitutional law and into statutory interpretation. That changes things greatly, because if the courts read a law enacted by Congress "wrong", Congress can correct that with the next bill. After 50 years of no such correction coming from Congress, the only reasonable conclusion is that the way the courts have been interpreting it must have been what Congress intended. But allowing the same principal to control in constitutional law is to give the courts the power to amend the constitution, without the concurrence of Congress or the states. That's inverting the entire design.

Secondly, Steven's argument is made in bad faith. He has always been quite willing to overturn centuries of precedent he dislikes as a matter of policy, no matter what legal havoc ensues.

Of course, in this layman's opinion, no one could ever in good faith read Miller as endorsing the collective rights view, except by not actually reading the whole decision. The decision remanded the case to a lower court, to determine whether Miller's sawed-off shotgun could be described as a "militia weapon", not whether Miller belonged to an organized militia. Miller apparently had (at that time [1]) the right to keep and bear any arm that he could show was often issued to soldiers for their individual use - which a few years later clearly included submachine guns, and by 1947 included the AK-47 full-auto assault rifle.

[1] Since Miller is generally described as an armed robber who informed on his confederates, it's likely that under modern laws he would be in violation of laws banning felons from possessing any firearm. No one nowadays disputes that one can lose one's 2nd amendment rights when convicted for feloniously misusing firearms.
7.21.2008 11:27pm