Precedent in the Federal Courts of Appeals: An Endangered or Invasive Species?

Our panel's topic is optimizing the law-declaring function, and within its purview is the status of precedent in modern courts of appeal. I take "precedent" to refer to appellate opinions that confront and resolve a perceived gap in the law by the declaration of law that is in some sense novel. I am not concerned today with whether this is making law in some frankly legislative sense or merely declaring law by extrapolation in a more interpretive sense. Sometimes courts confront a novel case, and by deciding it for reasons stated create a precedent for how similar cases should be decided in the future. This is generally thought to be a good thing, by reducing uncertainty about the law and thus encouraging orderly social behavior: We expect extrajudicial behavior to be more predictable when people can make choices in reliance on relatively determinate judicial enforcement of previously declared rules of law. The system of precedent works to such good ends only when ostensible precedents are in fact followed in later cases. Two conditions contribute interdependently to the success of precedent in clarifying the law and organizing predictable behavior in accordance with law. First, courts empowered to make precedent must discharge that function wisely, by writing opinions that are good examples of the judicial craft: They must produce public declarations of law that are well reasoned and persuasively grounded both in prior law and in present circumstances, whose novelty is carefully described and adequately explained. Second, there must be general judicial commitment to stare decisis, so that courts will habitually accept that the existence of a precedent is reason alone for its application to a later case, even if they might decide that case differently were it a case of first impression. Obviously, the more persuasive the articulation of an opinion proferred as precedent, the more likely a later court will be to accord it binding effect--unless, of course, the later court has no choice. I'll say more in due course about different degrees and dimensions of stare decisis. But first, you have been asked to consider, and I have been asked to address, whether precedent is an endangered species in the decisionmaking of modern appellate courts. Much of the concern about the current status of precedent, particularly within the federal courts of appeal, is secondary to a phenomenon over which judges have virtually no control: a "crisis of volume" that is decades long and remains unabated, which has caused caseloads per judge to rise to levels once thought unimaginable. In order to keep the judicial enterprise from grinding to a halt, judges have had to make painful compromises in how cases are decided. The rationing of scarce judicial time requires heavy reliance on staff assistance to manage a tracking system in which most cases proceed to disposition without oral argument, without a full-dress opinion, or without either. This frees judicial time for more extensive and personal judicial involvement in a relatively small subset of cases--those orally argued--and especially in an even smaller subset of these argued cases--those decided by a published opinion. (1) When a case is decided by published opinion, it generally means that the deciding panel intends the case to serve as a precedent. If the institution of precedent is endangered in the federal courts of appeals, it must be because there are too few precedents being published, or because these courts have become too lax in following precedent. I find little support for either proposition. Five thousand new published opinions a year does not seem to indicate a drought of precedent to be applied. Nor is it apparent that precedent today is more casually treated than in years past. Indeed, the trend is to the contrary, at least superficially. Vertical stare decisis demands, today as in the past, that lower courts give binding effect to the applicable precedents of higher courts. …