MAY 5, 2008  |  FOCUS & FORUM
Hungry for Precedent

By Donald J. Kochan

      Court watchers start to salivate in May, looking anxiously toward June and the end of the "term" of the U.S. Supreme Court, which, like leaving dessert for last at dinner, often leaves the tastiest part of its decisional meal for last. This year's term is no different. We anxiously await many opinions over the next couple months from the Supreme Court, as we always do this time of year.
      In last year's October 2006 term, the U.S. Supreme Court chose to hear only 78 cases of the approximately 8,800 cases filed. Its menu is quite selective, all the more reason to care about both the selections and outcomes. Our appetites await these results and their reverberations afterward. The most visible academic and media discussions of the law surround them. Only those decisions that percolate to the top of the menu, after multiple lower court restaurateurs play with the legal recipes, reach this level where the dishes served out of the Supreme Court come with such a significant stamp of quality or interest.
      At the caf of the courts, legal observers make a reservation at the table, coming in with our own anticipations or predictions about the meal that will be served but approaching it out of a certain hunger for an answer - some precedent and some finality. We have the menu memorized, knowing the courts' dockets, then anxiously await and prognosticate what the chefs have to offer. Before it arrives, we wonder whether the evening will end with a satisfyingly complete consumption of the meal or if something will be left wanting or incomplete. We might not even care about how we are served but be present simply to observe the table next to us and its relevance to our own interests. We wonder whether the chef's dishes all around will leave us full or whether we will be taking it home for some post-hoc calculation or conclusion, consumption and contemplation of its contents, or calibration and confrontation for its disposal - for good or bad. Precedent is the doggy bag of law. What we do with it when we get home makes all the difference.
      We all hunger for something to take away from the decisions reached from our courts. We search for some means by which there is a heightened level of certainty and predictability that can guide our future decisions. The concept of precedent is precisely one of the primary reasons there is such intensity in our observation of pronouncements from the highest court in the land. They let us know what legal food we can take home and provide at least a smattering of information about how it should taste when we get there.
      So the question again is why do we care? Why do we book the reservation and engage at this legal table in the first place? Why do we show for the chefs' presentation, and why do we care when we leave? It is because our system of law is based on reference and analogy. What happens in one case can affect parties to that litigation and strangers alike precisely because we rely on precedent. That, for example, is why you see indirectly interested parties acting as amici curiae, especially when the stakes rise as high as the formation of legal doctrine at the Supreme Court.
      But precedent does not just serve individual desires of. It is also an institutional necessity. Rule of law values underlie our demand for, and infatuation with, the concept of precedent in our legal system. We must know what the law is before we can reasonably choose our actions, and precedent plays an enormously influential role in that process. Throughout the historical development of the rule of law, there has been sensitivity to using law as a means of predictability, stability, confirmation of investment-backed expectations and confidence in the enforceability of transactions, transferability, transparency and trustworthiness.
      The fundamental elements to a legal regime based on the rule of law involve: clear and understandable rules; predictability and certainty; procedural validity in the formation of rules and rules independent of individual whims of government officials and instead with a basis in established law. There is a strong foundation for the importance of precedent, from the founding of the American republic forward. As Alexander Hamilton explained, "To avoid an arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them."
      Essentially coterminous with precedent is the phrase for its effect - stare decisis et non quieta movere, or "to stand by matters that have been decided and not to disturb what is tranquil." Finding the balance between past wisdom and prospective application is one of the primary difficulties with courts' application of precedent and the public's reliance on the same.
      To quote Shakespeare from "The Tempest," "What's past is prologue." The direction of the law helps us know how to think, how to practice and how to maneuver within a system of established rules and their susceptibility to being distinguished from the facts at hand. Identifiable precedent allows us the privilege of predictability and sometimes the promise of knowing the baseline from which a case must be distinguished. It is, however, handicapped when continuity or confidence or confusion infuse our understanding of the applicable rules - such as the court is want to do when it throws us split decisions and multiple opinions.
      When we are patrons at the diner of the Supreme Court (or any courts for that matter) - as participants or observers - we should always want a doggy bag to take away from the meal. And we should always want to check inside when we get home and analyze its contents. And then, apply our knowledge of those remnants to our next seat at the table.
      The contents may be clear, mysterious or unidentifiable. Your waiter may have mixed the dishes, much as pluralities do, such that you do not know for sure what you have taken home, or the leftovers may be consumed with palatal clarity that has a lasting effect. Those possibilities become the culinary quandary of court decisions. Our system of precedent demands that we examine the nature, substance, and value of the doggie bag provided and whether to keep it, throw it away or find some use for it. Look on as the term ends and sends you home from the court caf. We brace ourselves for a summer of ingesting and deconstructing another set of precedents and anticipating the next steps in the evolution of our laws as the Supreme Court term speeds to its impending close.
      Donald J. Kochan is an associate professor of law at Chapman University School of Law.