Precedent

Detrimental Reliance and Stare Decisis

Insightful thoughts from Dean Vik Amar relevant to Ramos v. Louisiana

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One factor the Court frequently recites in deciding whether to overturn a previous precedent is "reliance." In what way have people relied on the perhaps-incorrect precedent that might counsel against overturning it? But there is a lot of confusion over what kind of reliance interests count and exactly how to think about them.

One place this came up recently was in the Court's decision in Ramos v. Louisiana, ending the practice of allowing non-unanimous juries to convict defendants of crimes—and again in the Court's refusal to make that decision retroactive in Edwards v. Vannoy. In both cases, reliance interests might seem to be at stake, since the decision imperiled decades of practice used to obtain convictions in multiple states.

Dean Vik Amar wrote a recent column making a very insightful point, that what should matter to the analysis is not just reliance, but detrimental reliance:

[T]he reliance that must be protected via stare decisis—and that is protected in common law fields — is not reliance that leaves you surprised or disappointed, but reliance that leaves you worse off than you would have been had the earlier event—in this setting the mistaken earlier ruling — never occurred. That is what is meant by "detrimental," a word that is key to understanding most aspects of legal reliance that is unfortunately missing from much of the Court's stare decisis analyses.

For instance, part of the reason we protect reliance in property and contract is that a party might have made subsequent investments that are in turn premised on a previous understanding of the law. Similarly, overruling the Supreme Court's legal tender cases would frustrate detrimental reliance because people would lose not just the present and future rights to use paper currency in a particular way, but potentially tons of commercial investments already made.

And here Amar applies the analysis to Ramos and Edwards:

And applying this notion to the unanimous-jury-verdict cases, we see that Justice Kagan gets it wrong. What were the reliance interests at issue in Ramos? How could the state(s) argue that they would be worse off under a unanimous-jury-verdict rule today (if that be the correct constitutional interpretation of the Sixth Amendment and incorporation, points I do not take up today) than if Apodaca had never been decided? Certainly the reliance cannot take the form of the notion that states will be able to convict fewer people under a unanimity regime than under a rule permitting non-unanimity, or that convictions are more costly to obtain if they require unanimity. Those are costs to be sure, but they are the costs the (ostensibly correct) constitutional rule requires. Instead, the states can argue that they are worse off than they would have been absent Apodaca only insofar as—with respect to persons on direct appeal, the only ones at issue in Ramos—they could have tried and convicted those several hundred people who were convicted by non-unanimous verdicts under a unanimity rule the first time around, they will have to expend more resources by trying those folks twice rather than once (and perhaps some of those who would have been unanimously convicted had that been the rule in place the first time around will not be convicted because witnesses will have died or memories will have faded.) Non-trivial reliance, but not a huge deal either. So if jury unanimity in state verdicts is required by the Sixth and Fourteenth Amendments (again, questions I don't engage but that weren't the basis of Justice Kagan's stare decisis reasoning), then there was no reason to retain Apodaca.

What about this month's ruling in Edwards? Would applying Ramos retroactively harm states that reasonably and detrimentally relied on Apodaca? (And while the question whether to apply a new ruling retroactively is not technically the same doctrinal question as whether to overrule a past ruling, the two queries are very analytically similar, because they both ask how much of a past, mistaken ruling should continue to govern today, in light of detrimental reliance on it.) There is no doubt that applying Ramos retroactively would impose high costs on states that detrimentally relied on Apodaca. Having to retry tens if not hundreds of thousands of people whom a state might have convicted the first time around under a unanimity rule had such a rule been in place is tremendously expensive, to say nothing of the many defendants who would have been convicted unanimously years ago had that been the governing rule but who might not be convicted today because of lost evidence, dead witnesses, and stale memories. And yet here—where detrimental reliance by states is significant—Justice Kagan invokes stare decisis (that is, to give broad effect to the Ramos rule now on the books) to meaningfully hurt states for their reasonable reliance on Apodaca. This doesn't make sense if detrimental reliance is one of the keys to understanding stare decisis.

As Amar notes, we can imagine specific kinds of reliance on a criminal procedure decision like Ramos that might count as detrimental reliance—maybe the state convicted a defendant 11-1, but had they known about the Ramos rule the judge would have charged the jury to keep deliberating, and they would have eventually come around to a 12-0 conviction. Or maybe the defendant would have scored an 11-1 mistrial, but had the state known about the Ramos rule it would have immediately pressed for a second conviction while evidence and memories were fresh. But the dissents don't try to sketch out these specific arguments for detrimental reliance and trying to do so shows just how speculative they are.

I think it's no secret that there will be a lot more debate about overruling precedent in the next few years of the Roberts Court. This strikes me as a very useful clarification that ought to be part of the conversation.

NEXT: Conversations with the Sixth Circuit: An Interview with Judge Danny Boggs

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  1. Going forward, is 11 – 1 jury considered a mistrial?

    Or is it a non-guilty decision?

    It seems unfair that the govt can keep trying to convict someone if they get the 11 – 1 decision.

    1. If a jury in a criminal trial is never unanimous, then you get a mistrial. What’s called a “retrial” is Constitutionally a continuation of a single trial. The jury failed to do its job (convict or acquit), so a new jury had to be brought in the same trial.

      1. I’m not sure this is still the case but the Oregon Supreme Court ruled at one time after the Supreme Court decision that unanimous convictions were required and began reviewing all non-unanimous convictions. They also ruled acquittals did not need to be unanimous since the Supreme Court ruling didn’t touch on that issue.

    2. One thing the lawyer does not rely on is empirical data. What is the validation of unanimous juries versus non-unanimous? You need to do the research before setting national policy. That means some work. You have prior DNA data, and a retrospective study could be completed in a short time.

      This hideously toxic profession is mere feelings, and quackery. It is disgustingly atavistic and stupid. The Supreme Court should be sued for stupid, elementary malpractice. Get rid of the dunderheads. Making these torfeasors liable would deter and markedly upgrade the performance of the Supreme Court. If torts are good for everyone else, why is it depriving itself of its benefits.

      One benefit is that it replaces violence. And immunity fully justifies retaliatory violence in formal logic. That has greater certainty than the laws of physics.

      1. Have you been in a jury room? Most people want to go home. If someone feels strongly, people go along to get out of there. Juries were an advance in 1300 AD. They are anti-scientific garbage today.

        1. The bird is answering itself at this point…

        2. Juries will vote their feelings, how likable the defendant is. The judge should come to the verdict. If mistaken one way or the other, the judge should be held liable to the defendant or to the victims of the defendant he loosed on the public. His insurance company should cover his professional negligence. End all judge immunities. They are an abomination.

    3. I can’t see any reason why an American jurisdiction wouldn’t be free to establish a rule that an 11-1 verdict results in an acquittal. None have done so, though, and I don’t think there’s any serious argument that they’re constitutionally required to.

  2. Now we get to apply detrimental reliance to abortion law.

  3. Those instances of detrimental reliance don’t seem any more speculative than what is usually adduced in a commercial context. Obviously, some people who would have been convicted (by further deliberation or retrial) if the unanimity rule had been in effect will have to be released if the rule is made retroactive. Since people who would have been convicted are, by definition, guilty, that means that (i) justice will not be done, a detriment to the eternal order of the universe, and (ii) as a practical matter, they are likely to commit additional crimes, a detriment to the citizenry at large. I think Prof. Baude needs to do a lot more work to explain what constitutes “speculative” versus, I don’t know, “actual” harms in a retroactivity context.

  4. Obviously, some people who would have been convicted (by further deliberation or retrial) if the unanimity rule had been in effect will have to be released if the rule is made retroactive. Since people who would have been convicted are, by definition, guilty,

    Are they? Automatically?

    And what about the people who would have been acquitted if the unanimity rule had been in effect? That looks to me like a much greater detriment to the moral order of the universe, not to mention the fact that the harm to them as individuals is known and concrete, whereas “they’ll commit more crimes” is conjecture.

  5. Ramos affected only two relatively small states, one of which had already changed it’s laws by an overwhelming vote of the people to require unanimous jury verdicts.

  6. For a society that likes to pat itself on its back for its rights, we really don’t like spending money, time, or effort to ensure that they are enforced.

  7. As Amar notes, we can imagine specific kinds of reliance on a criminal procedure decision like Ramos that might count as detrimental reliance—maybe the state convicted a defendant 11-1, but had they known about the Ramos rule the judge would have charged the jury to keep deliberating, and they would have eventually come around to a 12-0 conviction. Or maybe the defendant would have scored an 11-1 mistrial, but had the state known about the Ramos rule it would have immediately pressed for a second conviction while evidence and memories were fresh. But the dissents don’t try to sketch out these specific arguments for detrimental reliance and trying to do so shows just how speculative they are.

    Maybe it’s just me, but I guess I kind of assumed that these were precisely the reliance interests that they were talking about.

  8. An 11-1 split is like arm wrestling. With further deliberations, the jury will almost certainly go 12-0. In the unlikely event of a one-person holdout, the prosecution is going to retry the case and almost certainly win. And no, 12 Angry Men is not real life.

    1. I know in Louisiana Judges would instruct juries that if the vote was 10-2 then the Jury had finished it’s work. They need not deliberate further.

  9. Prof. Baude,

    The issues you mention at the end of your piece don’t sound speculative to me, they sound like exactly what would have happened if the unanimity rule had been in place. How do I know? Because they are what happens now, with the rule!

    The state was clearly relying on the old rule when it refrained from asking for an “Allen charge”, and when it lost the opportunity for a quick retrial.

    Those are things that happen all the time, so in what way are they speculative?

  10. Yeah, I like this functional take a lot more than the more formalist ‘stare says do it like this’ take.

    Makes the line drawing more rational, both here and in future cases that rely on this new line.

  11. It’s always seemed to me that if the court identifies a constitutional flaw, it should not matter who previously relied on what. If the conviction was unconstitutional, then it’s unconstitutional, and the fact that nobody had raised the issue before should be irrelevant.

    For a criminal defendant, ignorance of the law is no excuse. That rule should then work to his benefit if the ignorance of the law lay with the prosecutor or the trial judge.

    1. Hadn’t the Supreme Court previously ruled that unanimous convictions we not required? Should anyone be faulted for following that law?

      1. That’s rather the point though – what does faulted mean, and how must it manifest for the government to get concessions for good faith?

    2. Worse still, People also have raised this objection before. And cert was denied. Ramos won the cert lottery.

  12. Who’s relying on Apodaca? IIUC both Louisana and Oregon had their non-unanimous jury procedures in place long before 1972, so assuming the policies would be struck down eventually, they would have to pay those costs regardless of whether or not Apodaca had been decided.

    Am I missing something?

  13. So we are just gonna ignore Gorsuchs “ackully Apaconda wasn’t really precedent man because I said so” right?

    Good, it was ridiculous from the start, but I’m glad that’s not just me. I think overruling it was a good decision, but the court ought to have been somewhat more honest about that.

  14. The reason that “detrimental” is missing from the rhetoric of precedent is that the court and non-parties to its various cases do not have either a contractual or equitable relationship. Unlike private parties in a specific case, a court is not legally bound not to cause harm to people in general when deciding things. Equitable detriment inherently requires a comparator (i.e., the other party in the claim of detrimental reliance) and a horizon of what the relevant costs and intangibles are.

    So when a decision invokes reliance, what they’re really discussing is the policy wisdom of a certain course — not that a decision would be contrary to the law because people who have relied upon previous holdings would incur a detriment from the change. In short, a court is not estopped from saying what the law is because others might have relied on contrary statements in the past. If the present decision might harm non-parties who reasonably relied on an authoritative judicial statement of the law, a court can certainly restrict the application of the new decision to past cases, which is where the reliance calculus enters “precedent precedent.” (Usually in the context of reliance on a statute later held unconstitutional.)

    It’s also a bit unfair to chide Kagan for the specific language of Alito’s dissent in Ramos, particularly since she didn’t join the “degree of reliance” part of the opinion.

    Mr. D.

  15. I call bullshit! What about reliance or “protecting settled expectations”? This conservative argument in favor of stare decisis begs the question of which expectations are worth protecting! This argument is also circular, at least to the extent that everyone already knows ahead of time that a court has the power to overrule its own precedents. Since there is a positive probability that any given precedent might be overruled, the non-binding nature of horizontal precedent is a risk of playing the law game. More here: https://priorprobability.com/2018/05/10/review-of-kozel-ch-2-pros-and-cons/

  16. Do states have reliance interests? I mean, they are governments that violated someone’s constitutional rights. Aren’t reliance interests (at least at the retroactivity stage) based somewhat in due process rights? Do governments have due process rights?

    1. Of course states have reliance interests; I’m not sure why you’re conflating that concept with the concept of rights.

  17. Victims of criminals have a reliance interest in their victimizers being in jail, and not out threatening them.

    It’s a rather large intellectual failure on your part to forget the people harmed by the criminals

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