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 title 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 from faithfully finding 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.

Comments

[Area Man]

Erie was based on an interpretation of a congressional statute, so Congress could overrule Erie by amending the law. That it hasn’t is probably because Congress is chosen from state voters who don’t want their state laws and courts being circumvented by unelected federal judges, who would no doubt have a field day “discovering” law, which is just code for doing whatever the hell they want, federalism be damned. It’s odd that any who purports to respect state sovereignty and to be wary of federal judges would want federal courts to abrogate more power for themselves at the expense of both Congress and the states.

[LivvyLawyer]

Judge Oldham may have been more worried about the establishment of an irrational horizontal precedent within the federal judiciary. Judge Oldham is not a fan of Section 230 caselaw. It is easy to sympathize with him. Few judges and few lawyers understand the operation of the Internet. Many federal rulings make little sense. Republican Nat’l Comm. v. Google LLC, 742 F. Supp. 3d 1099 (E.D. Cal. 2024) is typical.

The ruling contains the following paragraph.

The RNC does not, however, establish that Google “transport[s] . . . messages from place to place.” Significantly, the RNC does not allege it is a user of Gmail, but rather, alleges that its email service provider is Salesforce, and that it uses a separate email-delivery platform, Everest. (Compl. ¶¶ 22, 24, 36.) As with other similar services, their email provider transforms the email into “packets” that are sent through the internet via computers on the network, and periodically reassembled and repacketized by intermediate computers on the network. See U.S. v. Councilman, 418 F.3d 67, 69–70 (1st Cir. 2005). Based on the address indicated in the email, the packets that constitute the email are delivered to the recipient’s email server, which are then reconstituted to form the email which is displayed the next time the recipient uses their email program. Id. (explaining how an email “journey[s] from sender to recipient” via “a network of interconnected computers,” after which it may be accessed “in an e-mail client program. . . .”). It is thus not Google that transports the messages, but rather the various computers that comprise the network. See id.; see also Biden v. Knight First Amend. Inst. At Columbia Univ., 141 S. Ct. 1220, 1224 (2021) (Thomas, J., concurring) (referring to the email protocol as a “decentralized digital sphere[]” and noting that “[n]o small group of people controls e-mail”). Unlike a traditional mail service, email services, like Google’s Gmail, do not “carry” messages; they receive and store messages, and make them available for retrieval by the user after the message has been shuttled through the email protocol. See Councilman, 418 F.3d at 69–70.

The above summary is wrong.

Google’s mail servers are not passive endpoints, but integral transport agents that receive, route, filter, store, and transmit the email. Google both accepts and then carries messages either to an intermediate destination or to a final destination—functionally indistinguishable from message carriage duties traditionally imposed on telegraph companies. Google is therefore a carrier of messages, not merely a passive terminal.

[Stupid Government Tricks]

You're straining at a gnat. gmail.com is presumably thousands of internal servers, all connected, but they behave like a single server to the outside world. Complaining about calling them a single endpoint is about as relevant as complaining that a single CPU chip actually has "dozens" (for appropriate values of "dozen") of cores of various capabilities, with memory caches of various abilities, all talking to each other.

It reminds me of arguments over whether the CDC 6600 had one PPU or several, since what it really had was, to simplify immensely, one set of computer logic and multiple sets of memory and registers, I believe called the barrel because the computer logic rotated its connections among the different sets of memory and registers. One or multiple? Irrelevant, just as is your quibbling about whether gmail.com is one or thousands of servers internally.

ETA: Or to simplify even further, your complaint is equivalent to arguing that a huge corporate building with its own mail room is not in fact a single address for mail purposes, because it distributes mail to different floors and offices and cubicles. It's a useless confusing quibble, and you do yourself no favors by advancing it.

[ah....Clem]

Remember that Oldham issued an opinion where he deliberately misquoted sec. 230 to say "...similarly objectionable" instead of what it actually says ("otherwise objectionable") and then proceeded to rule as if it said what he falsely claimed it said.

There is no reason to have any respect for what this man says. Deliberately misquoting statutes should be grounds for dismissal, or at least being told to sit in the corner and rewrite your opinion based on what the law actually says.

[LivvyLawyer]

Judge Oldham quotes Section 230 accurately, and his argument is consistent with longstanding caselaw. See NetChoice, LLC v. Paxton, 20 F.4th 528 (5th Cir. 2021). For obscure or unknown reasons, a large part of the federal judiciary is trying to give plutocrats like Larry Ellison control over public discourse despite the express intent of Congress.

47 U.S. Code § 230 – Protection for private blocking and screening of offensive material
(a) FINDINGS The Congress finds the following:
(1)
The rapidly developing array of Internet and other interactive computer services available to individual Americans represent an extraordinary advance in the availability of educational and informational resources to our citizens.
(2)
These services offer users a great degree of control over the information that they receive, as well as the potential for even greater control in the future as technology develops.
(3)
The Internet and other interactive computer services offer a forum for a true diversity of political discourse, unique opportunities for cultural development, and myriad avenues for intellectual activity.
(4)
The Internet and other interactive computer services have flourished, to the benefit of all Americans, with a minimum of government regulation.
(5)
Increasingly Americans are relying on interactive media for a variety of political, educational, cultural, and entertainment services.
(b) POLICY It is the policy of the United States—
(1)
to promote the continued development of the Internet and other interactive computer services and other interactive media;
(2)
to preserve the vibrant and competitive free market that presently exists for the Internet and other interactive computer services, unfettered by Federal or State regulation;
(3)
to encourage the development of technologies which maximize user control over what information is received by individuals, families, and schools who use the Internet and other interactive computer services;
(4)
to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and
(5)
to ensure vigorous enforcement of Federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.

[A Japanese Student]

Here in Japan, a civil law country, we never had to deal with the absolute stare decisis like America. Instead stare decisis is enforced through appellate jurisdiction.

In criminal cases, if a decision contradicts an earlier appellate decision, the Supreme Court has mandatory jurisdiction (Code of Criminal Procedure §405(iii)) - it has to hear the case and hold oral argument. Defense counsels often raise doubtful claims of split of authority, because that forces the judges to read the briefs (at least in theory), and because filing a certiorari (which is the correct thing to do for novel questions of law) is way more burdensome than appeal.

In civil cases, it is a ground for certiorari (Code of Civil Procedure §318), so not much of a difference.

[wvattorney13]

It seems to me to be just as "orderly" for en banc review to be like SCOTUS certiorari review. Panel decisions could be persuasive but not binding on other panels, and a "panel split" signals a reason for the circuit to take it up en banc.

[amymangan751]

Judge Oldham’s lecture raises fascinating questions about judicial independence and the role of precedent. While digesting these legal ideas, for practical matters like commuting to events or court visits, https://ouremirates.com/rta-bus-timetable/ is a handy resource to navigate Dubai’s transport system efficiently.

[ReaderY]

The idea that the law has an absolute objective existence that one “discovers” is a recipe for judicial hubris, for the tendency to believe that whatever comes into your head is absolute objective truth. Take obscenity. Believing that obscenity is something objective that judges “find” led, for a couple of decades, to the absurdity of the Justices screening movies and deciding for themselves if they are obscene. Laws reflect a society’s norms, customs, values and opinions. These things are NOT objective. To believe one is finding objective law is simply to elevate ones own norms, customs, values and opinions above everyone else’s.

Deference to political branches is premised on the idea that law is not an objective thing but reflects people’s opinions, and different people have different opinions.

As to horizontal stare decisis, I think Constitutional Due Pricess requires courts to maintain uniformity in the law, leaving it to higher courts to override precedent. The Constitution prohibits vagueness and requires people to have notice what the law is. A system in which every judge believes himself to be the fount of objective truth and “finds” the law to be as he sees it is a system rife with arbitrary caprice, where citizens have no idea how a judge will rule and hence can have absolutely no clue what is required of them.

Such a system violates the foundational Due Process right of people to have notice of what the law requirses of them.