The Volokh Conspiracy
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Judge Oldham Wants To Restore A Judiciary Without Horizontal Stare Decisis
Judges would find the law, rather than mechanically following every word that appears in a published opinion.
This evening, Judge Andrew S. Oldham of the Fifth Circuit gave the Joseph Story Distinguished Lecture at the Heritage Foundation. I was pleased to be in attendance. The topic was provocative and will no doubt be controversial. Judge Oldham favors the elimination of horizontal stare decisis. As a result, an earlier three-judge panel on a court of appeals would not bind a later three-judge panel on that same court of appeals. Judge Oldham would eliminate what the Fifth Circuit calls the "Rule of Orderliness." Why is it called the "Rule of Orderliness"? In the absence of this rule, some would argue, there would be disorder, but this rule maintains order.
At first blush, this topic may seem crazy, even heretical. But Judge Oldham has provided a deep theoretical defense of his position. Given this is the Story lecture, Oldham focuses on one of Justice Story's most revered, yet reversed, decisions: Swift v. Tyson. As every 1L learns, Justice Story argued that the common law could be found by federal judges. Of course, Erie reversed Swift. But Steve Sachs has convinced me that Story was right and Brandeis was wrong. Indeed, the classical view was that law could be found. The seriatim opinions in Chisholm v. Georgia, for example, did not purport to state the law; these decisions attempted to find that law. It is a modern, Holmesean innovation that judge can simply "declare" what the law is. And this declaratory vision of the law has, regrettably, given rise to the scourge of judicial supremacy.
From this premise, Oldham argues that every judge, in every case, should "find" what the law is. The judicial oath demands no less. Yet horizontal stare decisis, and the rule of panel precedent, prevent judges from doing just that. Their hands are tied by the rule of orderliness. Rather, as soon as Panel A decides some issue, panels B through Z are required to mechanically follow every jot and tittle of Panel A's decision. It does not matter how poorly reasoned Panel A's decision was, or whether Panel A consulted the Constitution's original meaning, or whether the parties adequately presented all necessary argument to Panel A. There is a first mover's advantage. And the rule of orderliness is premised on not trusting the Judge of Panel B to faithfully find the law. Instead, they have to be told what to do.
Would eliminating the rule of orderliness bring about disorder? Oldham says no. Indeed, he thinks the current regime is extremely problematic. More than 80% of circuit decisions are designated as "unpublished." Moreover, en banc review is exceedingly rare. For example, the Fifth Circuit the en banc court sits about a dozen times per years. Yet, about 10% of the Supreme Court's merit docket is from unpublished cases. So the Justices do not seem troubled by whether a circuit precedent is itself precedential.
Judge Oldham's speech will, as I noted, prove controversial. I suspect several members of his own court, who are vigorous proponents of the rule of orderliness, will vigorously disagree.
I, for one, need to chew on this topic for some time. I already constrain the scope of stare decisis in the lower courts, to pursue the Constitution's original meaning. Judge Oldham's proposal would likely aid my proposal.
I encourage everyone to watch the lecture, and see what you think. Agree or disagree, Judge Oldham will give everyone some food for thought.
