Wednesday, January 27, 2010

Appellate Courts and Stare Decisis

The most difficult task facing any appellate attorney is convincing an appeals court to overrule its own precedent.

Because stare decisis has identifiable benefits it has a strong pull on appellate courts. The doctrine promotes political and social stability, adds certainty to commercial transactions, and fosters public confidence in the legal system by suggesting that the law does not change simply because some judges on an appellate court have been replaced by other judges.

But everyone agrees that precedent can be overruled. The question is when and for what reason. That is the rub. Courts, for example, are slow to overrule precedent in matters affecting real property and contracts so as not to unsettle long established legal relationships and expectations. On the other hand, it is argued that stare decisis should have less significance in constitutional law: because the Constitution is so difficult to amend the United States Supreme Court for all practical purposes has the final word on what the document means, and, therefore, the Court should be more amenable to rethinking some prior ill-considered or time worn decision.

Last week's Supreme Court ruling in Citizens Union v. Federal Election Commission brings all of this to mind. The five Justices in the majority not only overrule two of the Court's decisions, one from 1990 and the other from 2003. They also reject the distinction the Court and the Congress have drawn for a century between speech by a natural person and speech by a corporation, and discard Congressional restrictions on corporate financial contributions to candidates for public office. What effect this will have on political campaigns will be the subject of debate well into the future.

For appellate attorneys, however, the concurring opinion of Chief Justice Roberts, and the dissenting opinion of Justice Stevens, are required reading. Part Two of each opinion is devoted to an extraordinary analysis of stare decisis, and each opinion lays out its own road map for when an appellate court should, or should not, overrule precedent. The opinions are essential for any attorney preparing to argue that a precedent should be overruled, and for any attorney maintaining precedent should be reaffirmed.

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