Authority and authorities

Virginia Law Review

Volumn 94, Issue 8, 2008, Pages 1931-1961

  Schauer, Frederick ^a  

^a UNIVERSITY OF VIRGINIA   (United States)

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EID: 58849090174     PISSN: 00426601     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (242)

1. See, e.g., Roper v. Simmons, 543 U.S. 551, 575-78 (2005) (Kennedy, J.);
2. id. at 604-05 (O'Connor, J., dissenting);
3. id. at 622-28 (Scalia, J., dissenting);
4. Lawrence v. Texas, 539 U.S. 558, 572-73 (2003) (Kennedy, J.);
5. id. at 598 (Scalia, J., dissenting);
6. Atkins v. Virginia, 536 U.S. 304, 316 n.21 (2002) (Stevens, J.);
7. id. at 324-25 (Rehnquist, C.J., dissenting);
8. id. at 347-48 (Scalia, J., dissenting);
9. Printz v. United States, 521 U.S. 898, 921 n.11 (1997) (Scalia, J.);
10. id. at 976-77 (Breyer, J., dissenting);
11. Thompson v. Oklahoma, 487 U.S. 815, 830-31 (1988) (Stevens, J.);
12. id. at 868 n.4 (Scalia, J., dissenting);
13. Roger P. Alford, In Search of a Theory for Constitutional Comparativism, 52 UCLA L. Rev. 639, 640-44 (2005);
14. Steven G. Calabresi & Stephanie Dotson Zimdahl, The Supreme Court and Foreign Sources of Law: Two Hundred Years of Practice and the Juvenile Death Penalty Decision, 47 Wm. & Mary L. Rev. 743 (2005);
15. Vicki C. Jackson, Constitutional Comparisons: Convergence, Resistance, Engagement, 119 Harv. L. Rev. 109 (2005);
16. David S. Law, Generic Constitutional Law, 89 Minn. L. Rev. 652, 653-59 (2005);
17. Sanford Levinson, Looking Abroad When Interpreting the U.S. Constitution: Some Reflections, 39 Tex. Int'l L.J. 353 (2004);
18. Nelson Lund & John O. McGinnis, Lawrence v. Texas and Judicial Hubris, 102 Mich. L. Rev. 1555, 1580-81 (2004);
19. Noga Morag-Levine, Judges, Legislators, and Europe's Law: Common-Law Constitutionalism and Foreign Precedents, 65 Md. L. Rev. 32 (2006);
20. Gerald L. Neuman, The Uses of International Law in Constitutional Interpretation, 98 Am. J. Int'l L. 82 (2004);
21. Michael D. Ramsey, International Materials and Domestic Rights: Reflections on Atkins and Lawrence, 98 Am. J. Int'l L. 69 (2004);
22. Cheryl Saunders, Comparative Constitutional Law in the Courts: Is There a Problem?, 59 Current Legal Probs. 91 (2007);
23. Mark Tushnet, Transnational/Domestic Constitutional Law, 37 Loy. L.A. L. Rev. 239, 241-46 (2003);
24. Jeremy Waldron, Foreign Law and the Modern lus Gentium, 119 Harv. L. Rev. 129 (2005);
25. Ernest A. Young, Foreign Law and the Denominator Problem, 119 Harv. L. Rev. 148 (2005).
26. See, e.g., Gregory Scott Crespi, The Influence of Two Decades of Contract Law Scholarship on Judicial Rulings: An Empirical Analysis, 57 SMU L. Rev. 105, 106 n.10 (2004);
27. Mark Tushnet, Themes in Warren Court Biographies, 70 N.Y.U. L. Rev. 748, 156 (1995).
28. See Harold Hongju Koh, International Law as Part of Our Law, 98 Am. J. Int'l L. 43, 52-56 (2004);
29. Joan L. Larsen, Importing Constitutional Norms from a "Wider CivUization": Lawrence and the Rehnquist Court's Use of Foreign and International Law in Domestic Constitutional Interpretation, 65 Ohio St. L.J. 1283, 1298-99 (2004);
30. John O. McGinnis & Ilya Somin, Should International Law Be Part of Our Law?, 59 Stan. L. Rev. 1175 (2007);
31. Neuman, supra note 1, at 84-89.
32. 223 F.3d 898 (8th Cir. 2000), vacated as moot, 235 F.3d 1054 (2000) (en banc).
33. See Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001) (Kozinski, J.);
34. Bob Berring, Unprecedented Precedent: Ruminations on the Meaning of It All, 5 Green Bag 2d 245, 246 (2002);
35. Danny J. Boggs & Brian P. Brooks, Unpublished Opinions & the Nature of Precedent, 4 Green Bag 2d 17, 18 (2000);
36. Richard B. Cappalli, The Common Law's Case Against Non-Precedential Opinions, 76 S. Cal. L. Rev. 755, 759 (2003);
37. Jeffrey O. Cooper, Citability and the Nature of Precedent in the Courts of Appeals: A Response to Dean Robel, 35 Ind. L. Rev. 423, 425-29 (2002);
38. Frank I. Michelman, Anastasoff and Remembrance, 58 Ark. L. Rev. 555, 564-69 (2005);
39. Lauren Robel, The Practice of Precedent: Anastasoff, Noncitation Rules, and the Meaning of Precedent in an Interpretive Community, 35 Ind. L. Rev. 399, 409-14 (2002);
40. Bradley Scott Shannon, May Stare Decisis Be Abrogated by Rule?, 67 Ohio St. L.J. 645, 648-51 (2006);
41. J. Thomas Sullivan, Unpublished Opinions and No Citation Rules in the Trial Courts, 47 Ariz. L. Rev. 419, 419-21 (2005);
42. Symposium, Anastasoff, Unpublished Opinions, and "No Citation" Rules, 3 J. App. Prac. & Process 169 (2001);
43. Donn G. Kessler & Thomas L. Hudson, Losing Cite: A Rule's Evolution, Ariz. Att'y, June 2006, at 10, 10-11.
44. Fed. R. App. P. 32.1;
45. see Scott E. Gant, Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1, 47 B.C. L. Rev. 705 (2006). It is worth noting that so-called unpublished opinions are now routinely published in West's Federal Appendix.
46. For useful overviews of the issues, see Jessie Allen, Just Words? The Effects of No-Citation Rules in Federal Courts of Appeals, 29 Vt. L. Rev. 555, 556-61 (2005);
47. Stephen R. Barnett, No-Citation Rules Under Siege: A Battlefield Report and Analysis, 5 J. App. Prac. & Process 473, 487-97 (2003);
48. Sullivan, supra note 5, at 430-451;
49. Kenneth Anthony Laretto, Note, Precedent, Judicial Power, and the Constitutionality of "No-Citation" Rules in the Federal Courts of Appeals, 54 Stan. L. Rev. 1037, 1039-43 (2002).
50. Noam Cohen, A History Department Bans Citing Wikipedia as a Research Source, N.Y. Times, Feb. 21, 2007, at B8;
51. Scott Jaschik, A Stand Against Wikipedia, Inside Higher Ed, Jan. 26, 2007, http://insidehighered.com/news/2007/01/26/wiki.
52. See, e.g., Posting of Mary L. Dudziak to Legal History Blog, http://legalhistoryblog.blogspot.com/2007/02/study-on-wikipedia-accuracy-in- history.html (Feb. 6, 2007, 00:07 EST);
53. Posting of Daniel J. Solove to Concurring Opinions, http://www. concurringopinions.com/archives/2007/02/when-is-it-appr.html (Feb. 5, 2007, 13:54 EST);
54. see also Suzanna Sherry, Democracy and the Death of Knowledge, 75 U. Cin. L. Rev. 1053, 1054-55 (2007) (connecting phenomenon of Wikipedia with larger and troubling trends towards consensus epistemology).
55. See Joseph Raz, The Authority of Law: Essays on Law and Morality (1979);
56. Larry Alexander & Frederick Schauer, Law's Limited Domain Confronts Morality's Universal Empire, 48 Wm. & Mary L. Rev. 1579, 1586-87 (2007).
57. "[A]uthority and hierarchy play a role in law that would be inimical to scientific inquiry." Richard A. Posner, The Problems of Jurisprudence 62 (1990). Judge Posner exaggerates, given that genuine authority does exist even in science and mathematics.
58. See C.A.J. Coady, Testimony: A Philosophical Study 249-61 (1992);
59. Robert Audi, The Place of Testimony in the Fabric of Knowledge and Justification, 34 Am. Phil. Q. 405 (1997);
60. C.A.J. Coady, Mathematical Knowledge and Reliable Authority, 90 Mind 542, 548-49 (1981);
61. John Hardwig, The Role of Trust in Knowledge, 88 J. Phil. 693, 694 (1991). Advances in science and mathematics are themselves collaborative enterprises, with mathematicians and scientists often relying on the conclusions of trusted others. And although trust and authority are not identical, they share the characteristic of involving reliance on the conclusions of others under circumstances in which the relier has no first-hand reason to accept the conclusions. Yet although it is useful to recognize the role of authority and trust in science, Posner's basic point that authority looms far larger in law than in science seems nevertheless sound.
62. See, e.g., Cal. Ct. R. 5.118(a), 5.315;
63. In re Schmidt, 114 P.3d 816, 825 (Alaska 2005);
64. Gourdine v. Crews, 935 A.2d 1146, 1149 (Md. Ct. Spec. App. 2007).
65. The locus classicus is H.L.A. Hart, Commands and Authoritative Legal Reasons, in Essays on Bentham: Studies in Jurisprudence and Political Theory 243, 261-66 (1982).
66. See also Richard T. De George, The Nature and Limits of Authority 34-42 (1985);
67. Roger A. Shiner, Norm and Nature: The Movements of Legal Thought 52-53 (1992);
68. R.A. Duff, Inclusion and Exclusion: Citizens, Subjects and Outlaws, 51 Current Legal Probs. 241, 247 (1998);
69. Kenneth Einar Himma, H.L.A. Hart and the Practical Difference Thesis, 6 Legal Theory 1, 26-27 (2000);
70. Frederick Schauer, The Questions of Authority, 81 Geo. L.J. 95, 95-96 (1992).
71. For a challenge to the standard account, see P. Markwick, Independent of Content, 9 Legal Theory 43, 43-44 (2003).
72. 111 N.E. 1050, 1053 (N.Y. 1916) (Cardozo, J.).
73. That role or position may include the ability to impose the authority's will by force. It is not my topic here, but it is worth mentioning that the ability to be treated as an authority will often be backed up by force. It is important, however, not to confuse the idea of authority with the idea of legitimate authority nor to confuse the fact that a subject may treat a source as authoritative with the reasons why the subject may have chosen to do so.
74. On further reflection, probably not. In my experience, which in fact does include experience as a private in the United States Army, sergeants are vastly more interested in having their orders obeyed than in having the subjects accept or agree with the substantive reasons lying behind them.
75. See, e.g., Heidi M. Hurd, Moral Combat (1999);
76. A. John Simmons, Moral Principles and Political Obligations (1979);
77. Robert Paul Wolff, In Defense of Anarchism (1970);
78. Heidi M. Hurd, Challenging Authority, 100 Yale L.J. 1611, 1612-13 (1991);
79. Heidi M. Hurd, Why You Should Be a Law-Abiding Anarchist (Except When You Shouldn't), 42 San Diego L. Rev. 75, 75-76 (2005).
80. See generally Scott J. Shapiro, Authority, in The Oxford Handbook of Jurisprudence and Philosophy of Law 382, 391-93 (Jules Coleman & Scott Shapiro eds., 2002) (discussing the relationship between authority and rationality).
81. See Donald H. Regan, Law's Halo, in Philosophy and Law 15, 18-19 (Jules Coleman & Ellen Frankel Paul eds., 1987).
82. Also relevant here is the literature criticizing judicial involvement in enforcing the Fugitive Slave Laws, Robert M. Cover, Justice Accused: Antislavery and the Judicial Process (1975), the laws of Nazi Germany, Lon L. Fuller, Positivism and Fidelity to Law: A Reply to Professor Hart, 71 Harv. L. Rev. 630 (1958);
83. but see Stanley L. Paulson, Lon L. Fuller, Gustav Radbruch, and the "Positivist" Theses, 13 L. & Phil. 313 (1994), and the racial laws of apartheid South Africa, David Dyzenhaus, Hard Cases in Wicked Legal Systems: South African Law in the Perspective of Legal Philosophy (1991).
84. Plato, The Apology of Socrates, in Dialogues of Plato 11, 32.(Benjamin Jowett trans., rev. ed. 1900);
85. Plato, Crito, in Dialogues of Plato, supra, at 41, 50-51.
86. See Cooper v. Aaron, 358 U.S. 1, 12 (1958).
87. 347 U.S. 483 (1954).
88. Kenneth O'Reilly, Nixon's Piano: Presidents and Racial Politics from Washington to Clinton 170-71 (1995);
89. see also Richard Kluger, Simple Justice 753-54 (1976).
90. This is a controversial position these days. Compare Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review 246-48 (2004) (rejecting the idea that the Supreme Court has interpretive authority over the other branches of government or over the people),
91. and Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217, 343 (1994) (same, but focusing on executive branch and not the population at large),
92. and Robert C Post, The Supreme Court, 2002 Term-Foreword: Fashioning the Legal Constitution: Culture, Courts, and Law, 117 Harv. L. Rev. 4, 6-11 (2003) (same, with qualifications),
93. with Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1361-62 (1997) (defending Supreme Court interpretive supremacy),
94. and Larry Alexander & Lawrence B. Solum, Popular? Constitutionalism?, 118 Harv. L. Rev. 1594, 1628-35 (2005) (book review) (same).
95. See, e.g., Raz, supra note 10, at 233-49;
96. Joseph Raz, The Morality of Freedom 38-42, 97-105 (1986);
97. Robert P. George, Natural Law and Positive Law, in The Autonomy of Law: Essays on Legal Positivism 321, 327-28 (Robert P. George ed., 1996);
98. Scott J. Shapiro, The Difference That Rules Make, in Analyzing Law: New Essays in Legal Theory 33, 59-61 (Brian Bix ed., 1998);
99. see also Donald H. Regan, Reasons, Authority, and the Meaning of "Obey": Further Thoughts on Raz and Obedience to Law, 3 Can. J.L. & Jurisprudence 3, 14-19 (1990) (offering complex and qualified defense of legal obligation).
100. Even if deference to authority is irrational from the perspective of the subject, imposition of authority may still be rational from the perspective of the authority. See Larry Alexander & Emily Sherwin, The Deceptive Nature of Rules, 142 U. Pa. L. Rev. 1191, 1194-99 (1994);
101. Larry Alexander, The Gap, 14 Harv. J.L. & Pub. Pol'y 695 (1991);
102. Frederick Schauer, Imposing Rules, 42 San Diego L. Rev. 85, 88-89 (2005).
103. But see Philip Soper, The Ethics of Deference: Learning from Law's Morals (2002).
104. I (mostly) learned how to play bridge from a book, and I initially learned from a book why it is generally not a good idea to lead away from a king. But if I am now asked why it is a bad idea to lead away from a king, I can give a substantive reason and need not and would not say, "Because Eddie Kantar in his book on bridge defense says so." But if I am asked why it is a good idea to hold a golf club so that the angle between my right thumb and forefinger is aimed at my right shoulder, I can do no better than to say that this rule is in all of the golf instruction books I have ever read.
105. See, e.g., Morris L. Cohen, Robert C. Berring & Kent C. Olson, How to Find the Law 3 (9th ed. 1989);
106. Robin Wellford Slocum, Legal Reasoning, Writing, and Persuasive Argument 13-14 (2d ed. 2006).
107. "For the second time in my judicial career, I am forced to follow a Supreme Court opinion I believe to be inimical to the Constitution." Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1113 (5th Cir. 1997) (Garza, J., concurring).
108. See Jackson, supra note 1, at 114;
109. Saunders, supra note 1, at 101;
110. see also Tushnet, supra note 1, at 25 (noting that the real controversy over citation to foreign law is about "the relevance" of such references).
111. But see supra note 11.
112. It is characteristic of law and many other domains of authority that the system often tells the subjects who (or what) the authorities are, and thus the subject is not required (or entitled) to decide whether a given authority is entitled to source-based and content-independent deference. But in other contexts, including those in which the subject must decide whether to defer to an authority or must decide which of multiple authorities is entitled to deference, there arises the interesting question of how much knowledge the subject needs in order to defer to someone with greater knowledge. See Scott Brewer, Scientific Expert Testimony and Intellectual Due Process, 107 Yale L.J. 1535, 1582-85 (1998). This problem, which is characteristic of the issue of expert testimony, will be dealt with more extensively later in this Section. See infra note 58 and accompanying text.
113. See Posner, supra note 11, at 62;
114. see also Lon L. Fuller, Reason and Fiat in Case Law, 59 Harv. L. Rev. 376, 377-80 (1946).
115. 395 U.S. 444, 447-48 (1969) (per curiam).
116. See supra note 11. On the law/science comparison, compare Waldron, supra note 1, at 143-46,
117. with James Allan, Jeremy Waldron and the Philosopher's Stone, 45 San Diego L. Rev. 133, 138-47 (2008).
118. "The concept of a system of precedent is that it constrains judges in some cases to follow decisions they do not agree with." P.S. Atiyah, Form and Substance in Legal Reasoning: The Case of Contract, in The Legal Mind: Essays for Tony Honoré 19, 27 (Neil MacCormick & Peter Birks eds., 1986);
119. see also Larry Alexander, Constrained By Precedent, 63 S. Cal. L. Rev. 1, 4 (1989);
120. Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817 (1994);
121. Richard H. Fallon, Jr., Stare Decisis and the Constitution: An Essay on Constitutional Methodology, 76 N.Y.U. L. Rev. 570, 570 (2001);
122. Michael J. Gerhardt, The Role of Precedent in Constitutional Decisionmaking and Theory, 60 Geo. Wash. L. Rev. 68, 87 (1991);
123. Henry P. Monaghan, Taking Supreme Court Opinions Seriously, 39 Md. L. Rev. 1, 3 (1979);
124. Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 575 (1987). The question of stare decisis has been much in the news and in Supreme Court opinions recently, as the Court and various commentators debate not only the question whether the Supreme Court is obligated to take its previous decision as authoritative but also whether the Court is in fact doing so.
125. See, e.g., Leegin Creative Leather Prods. v. PSKS, Inc., 127 S. Ct. 2705, 2737 (2007) (Breyer, J., dissenting);
126. Parents Involved in Cmty. Sch. v. Seattle Sch. Dist. No. 1, 127 S. Ct. 2738, 2835 (2007) (Breyer, J., dissenting);
127. FEC v. Wis. Right to Life, Inc., 127 S. Ct. 2652, 2704 (2007) (Souter, J., dissenting);
128. Morse v. Frederick, 127 S. Ct. 2618, 2649 (2007) (Stevens, J., dissenting);
129. Scott v. Harris, 127 S. Ct. 1769, 1781 (2007) (Breyer, J., concurring);
130. Frederick Schauer, Has Precedent Ever Really Mattered in the Supreme Court?, 24 Ga. St. U. L. Rev. 381, 381-85 (2007);
131. Ronald Dworkin, The Supreme Court Phalanx, N.Y. Rev. Books, Sept. 27, 2007, at 92;
132. Editorial, Justice Denied, N.Y. Times, July 5, 2007, at 12;
133. Charles Lane, Narrow Victories Move Roberts Court to Right; Decisions Ignore Precedent, Liberal Justices Contend, Wash. Post, June 29, 2007, at A4;
134. see also Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law 139 (Amy Gutmann ed., 1997) ("The whole function of [stare decisis] is to make us say that what is false under proper analysis must nonetheless be held to be true ...."). Although in this Article I do not directly engage the questions whether the Supreme Court should or does follow its own previous decisions even when it thinks them mistaken, the debate about stare decisis underscores the importance of understanding the concept of authority which undergirds these debates.
135. See sources cited supra note 28.
136. "If the precedent is truly binding on [the judge], and if he loyally accepts the principle of stare decisis, he will not even pause to consider what substantive reasons may be given for an opposite decision."
137. Atiyah, supra note 36, at 20;
138. see also Fuller, supra note 33, at 377.
139. 487 U.S. 815, 830 (1988) (Stevens, J., plurality opinion) (emphasis added).
140. 543 U.S. 551, 575 (2005)
141. (quoting Trop v. Dulles, 356 U.S. 86, 102-03 (1958) (plurality opinion)).
142. Id. at 578.
143. I do not make the claim that such sources are typically outcome-determinative. Rather, the claim is that their authority as authority is used to strengthen a conclusion reached on other grounds or as one factor among several, which in combination produce the following court's conclusion.
144. See Young, supra note 1, at 155-56 (arguing that the absence of discussion of reasoning of other courts shows that Supreme Court is deferring to foreign opinion).
145. E.g., Ziegelmaier v. Rasmussen, 324 P.2d 116, 118 (Cal. App. Dep't Super. Ct. 1958);
146. Volk v. AtI. Acceptance & Realty Co., 59 A.2d 387, 392 (N.J. Ch. 1948).
147. E.g., Gaspro, Ltd. v. Comm'n of Labor & Indus. Relations, 377 P.2d 932, 935 (Haw. 1962).
148. E.g., Wallace Constr. Co. v. Indus. Boiler Co., 470 So. 2d 1151, 1153 (Ala. 1985);
149. Puffer Mfg. v. Kelly, 73 So. 403, 403 (Ala. 1916);
150. see also EEOC v. Nat'l Children's Ctr., Inc., 146 F.3d 1042, 1047 (D.C. Cir. 1998) (noting a '"growing consensus among the courts of appeals'"
151. (quoting Pansy v. Borough of Stroudsbourg, 23 F.3d 772, 779 (3d Cir. 1994))).
152. See, e.g., Mastro v. Brodie, 682 P.2d 1162, 1168 (Colo. 1984) (describing and following approach of "[t]he overwhelming majority of state appellate courts");
153. Smidt v. Porter, 695 N.W.2d 9, 20 (Iowa 2005) (referring to a conclusion reached by the "overwhelming majority of courts").
154. E.g., Quint v. Pawtuxet Valley Bus Lines, 335 A.2d 328, 332 (R.I. 1975);
155. Wal-Mart Stores v. Sturges, 52 S.W.3d 711, 724 (Tex. 2001).
156. E.g., 4000 Asher, Inc. v. State, 716 S.W.2d 190, 192 (Ark. 1986);
157. State v. Rizzo, 833 A.2d 363, 406 (Conn. 2003);
158. Therrien v. Sullivan, 891 A.2d 560, 563 (N.H. 2006).
159. See Ronald Dworkin, Taking Rights Seriously 23-28 (1977).
160. Although Dworkin initially appeared to suggest that the obligation to follow a rule was a conclusive one, he has been frequently criticized for collapsing the distinction between the obligation to use a source and the obligation to treat it as conclusive. See Joseph Raz, Legal Principles and the Limits of Law, 81 Yale L.J. 823, 845 (1972);
161. Colin Tapper, A Note on Principles, 34 Mod. L. Rev. 628, 634 (1971);
162. Frederick Schauer, (Re)Taking Hart, 119 Harv. L. Rev. 852, 873 n.69 (2006) (book review).
163. For Dworkin's response to these critiques, see Ronald Dworkin, Hart and the Concepts of Law, 119 Harv. L. Rev. F. 95, 100-01 (2006), http://www.harvardlawreview.org/forum/issues/119/jan06/d workin.pdf.
164. See Frederick Schauer, Playing by the Rules: A Philosophical Examination of Rule-Based Decision-Making in Law and in Life 23-24 (1991).
165. The word "permissive" is also better than "persuasive. " See John Gardner, Concerning Permissive Sources and Gaps, 8 Oxford J. Legal Stud. 457, 458 (1988).
166. Indeed, it may be that in legal decisionmaking generally the distinction between impermissible and permissible sources (and outcomes) is even more important than the distinction between mandatory and optional sources (and outcomes). And that is because the entire shape of legal argument is determined by what sources can and cannot be used, whereas the distinction between mandatory usable sources and optional usable sources, while undoubtedly important, does not have the same discourse-shaping importance. For related observations in the context of "on the wall" and "off the wall" arguments, see Sanford Levinson, Frivolous Cases: Do Lawyers Really Know Anything at All?, 24 Osgoode Hall L.J. 353 (1986);
167. Sanford Levinson, What Do Lawyers Know (And What Do They Do with Their Knowledge)? Comments on Schauer and Moore, 58 S. Cal. L. Rev. 441 (1985).
168. See Young, supra note 1, at 152-53.
169. Louis Loss, Joel Seligman & Troy Paredes, Securities Regulation (4th ed. 2006).
170. The phenomenon of taking Second Circuit securities decisions as authoritative even outside the Second Circuit is well documented. See Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 762 (1975) (Blackmun, J., dissenting);
171. SEC v. Kasser, 548 F.2d 109, 115 (3d Cir. 1977) (noting the Second Circuit's "especial expertise" in securities matters);
172. Travis v. Anthes Imperial Ltd., 473 F.2d 515, 523 n.14 (8th Cir. 1973) (correcting a district court's interpretation of a Second Circuit case while appearing to treat that case as authoritative); Samuel Estreicher &
173. John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L. Rev. 681, 728 n.171 (1984);
174. Robert W. Hamilton, The State of State Corporation Law: 1986, 11 Del. J. Corp. L. 3, 16 (1986).
175. See Brewer, supra note 32, at 1538-39 (noting the difficulties nonexpert judges and juries face when deciding between competing experts).
176. Legal philosophers will recognize the affinity between this account and the "service conception" of authority developed by Joseph Raz. See, e.g., Raz, supra note 10; Raz, supra note 25;
177. Joseph Raz, Practical Reason and Norms 62-65 (2d ed. 1990).
178. There is an ethical obligation for lawyers to cite to directly contrary controlling authority, see Model Rules of Prof 1 Conduct R. 3.3(a)(2) (2007), but even apart from the significant qualifications provided by "directly" and "controlling," the obligation is one that is hardly universally followed.
179. See Roger J. Miner, Lecture, Professional Responsibility in Appellate Practice: A View from the Bench, 19 Pace L. Rev. 323, 331 (1999).
180. See, e.g. Dave Barry, Dave Barry Is Not Making This Up (1994). Like every other citation in this Essay, this one has an oddly ironic and self-referential double aspect.
181. Karl N. Llewellyn, Remarks on the Theory of Appellate Decision and the Rules or Canons About How Statutes Are to Be Construed, 3 Vand. L. Rev. 395, 401-06 (1950). Llewellyn himself acknowledged that his skepticism about the outcome-determining effect of formal legal rules (or canons) was limited to hard appellate cases.
182. Karl Llewellyn, The Bramble Bush: Some Lectures on Law and Its Study 54 (1930). And even with respect to hard appellate cases, the frequency with which mutually exclusive legal propositions are each supportable by legitimate legal sources is an empirical question to which Llewellyn's examples do not provide a conclusive answer. Indeed, whether Llewellyn was actually right about the canons is not entirely clear.
183. See Michael Sinclair, "Only a Sith Thinks Like That": Llewellyn's "Dueling Canons," One to Seven, 50 N.Y.L. Sch. L. Rev. 919, 919-20 (2006);
184. Michael Sinclair, "Only a Sith Thinks Like That": Llewellyn's "Dueling Canons," Eight to Twelve, 51 N.Y.L. Sch. L. Rev. 1003, 1004 (2007).
185. See Patricia M. Wald, The Rhetoric of Results and the Results of Rhetoric: Judicial Writings, 62 U. Chi. L. Rev. 1371, 1375 (1995);
186. see also Paul A. Freund, An Analysis of Judicial Reasoning, in Law and Philosophy: A Symposium 282, 288 (Sidney Hook ed., 1964);
187. Patrick J. Schiltz, The Citation of Unpublished Opinions in the Federal Courts of Appeals, 74 Fordham L. Rev. 23, 49 (2005).
188. This is not to say that they should have been written.
189. One can draw an analogy from the law of evidence to understand the practice of citing sources. The standard for evidentiary relevance is that the evidence must have "any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Fed. R. Evid. 401. Likewise, the practical standard for citing a source may be that it simply makes a legal proposition more likely to be sound than if the source did not exist, which is still compatible with it being more likely unsound than sound.
190. See, e.g., Mark Tushnet, When Is Knowing Less Better than Knowing More? Unpacking the Controversy over Supreme Court Reference to Non-U.S. Law, 90 Minn. L. Rev. 1275, 1284-85 (2006).
191. See, e.g., Jackson, supra note 1, at 116-20; Saunders, supra note 1, at 100-01.
192. See Rupert Cross & J.W. Harris, Precedent in English Law 4 (4th ed., 1991);
193. Grant Lamond, Do Precedents Create Rules?, 11 Legal Theory 1, 2 (2005);
194. Stephen R. Perry, Judicial Obligation, Precedent and the Common Law, 7 Oxford J. Legal Stud. 215, 215 (1987).
195. See W.D. Ross, The Right and the Good 28 (1930);
196. Alan Gewirth, Are There Any Absolute Rights?, 31 Phil. Q. 1, 2 (1981);
197. Robert Nozick, Moral Complications and Moral Structures, 13 Nat. L. F. 1, 7 (1968);
198. Frederick Schauer, A Comment on the Structure of Rights, 27 Ga. L. Rev. 415, 415 (1993);
199. John Searle, Prima Facie Obligations, in Practical Reasoning 81, 81-82 (Joseph Raz ed., 1978);
200. Judith Jarvis Thomson, Some Ruminations on Rights, 19 Ariz. L. Rev. 45, 50 (1977).
201. The compelling interest formulation, more commonly associated with due process and equal protection, see Roe v. Wade, 410 U.S. 113, 155 (1973);
202. Korematsu v. United States, 323 U.S. 214, 216 (1944), is not unheard of in the free speech context.
203. See, e.g., New York v. Ferber, 458 U.S. 747, 756-57 (1982).
204. The most standard of the standard examples for this proposition is Riggs v. Palmer, 22 N.E. 188 (1889), in which the injustice of allowing Elmer Palmer to inherit under a will as a result of his having murdered the testator was held sufficient to override the clearly contrary words of the New York Statute of Wills.
205. Id. at 189-90. And there are numerous other examples.
206. See Richard H.S. Tur, Defeasibilism, 21 Oxford J. Legal Stud. 355, 360 (2001).
207. See Richard A. Posner, How Judges Think 348-49 (2008). In fact it is rare for an American court to be asked to treat as authoritative the conclusions of a single foreign court. Far more common is the view that American courts should treat as nonconclusively authoritative the collective judgments of the community of nations, or the community of civilized nations, or the community of Western industrialized democracies, or some similar aggregation of other jurisdictions.
208. See Waldron, supra note 1, at 144-45. I suspect, however, that Justice Scalia and his allies believe that the collective production of international opinion is essentially a questionable political process of groupthink. It is therefore not, they would argue, a genuinely interactive and self-correcting system in which, like Lord Mansfield's image of the common law working itself pure,
209. Omychund v. Barker, 26 Eng. Rep. 15, 23 (Ch. 1744), group opinion is more reliable than individual opinion. See James Surowiecki, The Wisdom of Crowds (2004).
210. See supra notes 4-7 and accompanying text. The cases subject to such an order are typically "publicly available, either electronically or in print."
211. Amy E. Sloan, A Government of Laws and Not Men: Prohibiting Non-Precedential Opinions by Statute or Procedural Rule, 79 Ind. L.J. 711, 711 n.2 (2004);
212. see also Brian P. Brooks, Publishing Unpublished Opinions, 5 Green Bag 2d 259, 259 (2002). Yet although most of the controversy now is about the precedential effect of unpublished opinions, earlier the issue was whether decisions with precedential effect should even be published.
213. See Shannon, supra note 5, at 655;
214. see also William L. Reynolds & William M. Richman, The Non-Precedential Precedent-Limited Publication and No-Citation Rules in the United States Courts of Appeals, 78 Colum. L. Rev. 1167, 1167-68 (1978).
215. There is an interesting analytic point here. A court that makes a rule in Case 1 is, by virtue of the necessarily generalizing feature of all rules, making a rule that will presumptively apply in Case 2, Case 3,..., Case n. So when a court considers in Case 1 whether some rule that will generate the correct result in Case 1 will also generate the correct result in, say, Case 2, Case 3, and Case 4, it is open to the possibility that it might be required to reach the wrong all-things-considered result in Case 1, the case before it, in order to avoid providing reasons for future incorrect results in Cases 2, 3, and 4.
216. See M.P. Golding, Principled Decision-Making and the Supreme Court, 63 Colum. L. Rev. 35, 49 (1963);
217. Kent Greenawalt, The Enduring Significance of Neutral Principles, 78 Colum. L. Rev. 982, 1002-03 (1978). If a court wishes to avoid incorrect results in the cases before it, therefore, one way of doing so is to try to ensure that those results do not become reasons in other and future cases.
218. See Frederick Schauer, Do Cases Make Bad Law?, 73 U. Chi. L. Rev. 883, 900-01 (2006);
219. Frederick Schauer, Giving Reasons, 47 Stan. L. Rev. 633, 637 (1995).
220. The Anastasoff issue seems to involve the distinct questions of precedent-stripping and citation-prohibiting. See Michelman, supra note 5, at 562. Implicit in my argument here, however, is that the two may be more closely related than either the Anastasoff court or most of the commentators have appreciated. Citation is not just a pathway to precedent; it is the language the law uses to embody its precedential character. To prohibit the citation of decisions that may have precedential effect is to endorse the existence of secret law, the unacceptability of which explains the impetus for the new Rule 32.1 of the Federal Rules of Appellate Procedure. But a precedentstripping rule without a no-citation rule may be toothless, because even formally non-precedential but still citable decisions may exert constraining and path-dependencycreating effects on future decisions.
221. Although the desire of a court both to say something and not to have that something stand as a precedent for future cases is mostly associated these days with the controversies about no-citation rules and about so-called unpublished opinions, this is essentially what the Supreme Court explicitly attempted to do in Bush v. Gore, 531 U.S. 98, 109 (2000). And it is noteworthy that in the eight years since that decision, it has never been cited by the Court itself, although it has been cited 221 times in state and lower federal courts.
222. I should note that it is hardly clear that Middlebury in fact made the correct decision. Wikipedia is notoriously prone to errors, but it is also notoriously more reliable on many topics than not only the person who is consulting Wikipedia in the first place but also many other sources. If the Supreme Court of the United States in Bush v. Gore, 531 U.S. at 103, can rely on articles in the Omaha World-Herald for empirical propositions on electoral behavior
223. (on which, see the very amusing footnote in Frederick Schauer, The
224. Teague v. Lane, 489 U.S. 288, 296 (1989).
225. The boilerplate citation is to United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 (1906).
226. See Frederick Schauer & Virginia J. Wise, Legal Positivism As Legal Information, 82 Cornell L. Rev. 1080, 1088-89 (1997).
227. H.L.A. Hart, The Concept of Law 94 (Penelope A. Bulloch & Joseph Raz eds., 2d ed. 1994).
228. Brian Simpson, The Common Law and Legal Theory, in Legal Theory and Common Law 8, 18-21 (William Twining ed., 1986);
229. see also Benjamin C. Zipursky, The Model of Social Facts, in Hart's Postscript: Essays on the Postscript to The Concept of Law 219, 228-29 (Jules Coleman ed., 2001).
230. Plainly instructive on this point is John Rawls, Two Concepts of Rules, 64 Phil. Rev. 3, 19 (1955) (arguing that decisions have an institution-creating aspect along with their decisionmaking one).
231. There is an obvious connection here with the academic legal writing that has focused on the identity of the legal canon and on the ways in which the canon shifts. See J.M. Balkin & Sanford Levinson, Legal Canons: An Introduction, in Legal Canons 3 (J.M. Balkin & Sanford Levinson eds., 2000).
232. Paul J. Liacos, Mark S. Brodin & Michael Avery, Handbook of Massachusetts Evidence (7th ed. 1999);
233. Mark S. Brodin & Michael Avery, Handbook of Massachusetts Evidence (8th ed. 2007). Given that the book, in all of its editions, has been cited more than a thousand times by the Massachusetts Supreme Judicial Court and the Massachusetts Appeals Court, it would take a brave (or foolhardy) lawyer to argue a point of evidence before one of those courts without dealing with what Liacos had to say on the issue. To say that the source is not a binding (although, to repeat, not absolutely binding) authority seems therefore to be quite an oversimplification.
234. See Sarah K. Harding, Comparative Reasoning and Judicial Review, 28 Yale J. Int'l L. 409, 414-15 (2003) (noting that early Charter of Rights and Freedoms cases frequently cited United States Supreme Court decisions).
235. Perhaps the Ninth Amendment is a good example, although less so now than in the past. See John Hart Ely, Democracy and Distrust: A Theory of Judicial Review 34 (1980) ("In sophisticated legal circles mentioning the Ninth Amendment is a surefire way to get a laugh. ('What are you planning to rely on to support that argument, Lester, the Ninth Amendment?')");
236. Thomas B. McAffee, A Critical Guide to the Ninth Amendment, 69 Temp. L. Rev. 61, 63 (1996). And perhaps so too is the constitutional guarantee of a "republican form of government." U.S. Const, art. IV, § 4, cl. 1. Thus, Bruce Ackerman notes, correctly, that just as Brown v. Board of Education, 347 U.S. 483 (1954), has become quasi-textual as an authority (this is my phrasing and not his), so too has the explicitly textual guarantee of a republican form of government become, in essence, non-authoritative.
237. Bruce Ackerman, 2006 Oliver Wendell Holmes Lectures: The Living Constitution, 120 Harv. L. Rev. 1737,1752 (2007).
238. 127 S. Ct. 2738,2840-42 app. b (Breyer, J., dissenting).
239. And thus the debate at Middlebury College and elsewhere about Wikipedia is analogously not about citation or footnoting but is about what it is to do history, and thus about what history as a practice is.
240. Hans Kelsen, Pure Theory of Law 3-4 (Max Knight trans., 2004).
241. See Frederick Schauer & Virginia J. Wise, Nonlegal Information and the Delegalization of Law, 29 J. Legal Stud. 495, 497 (2000).
242. See Richard A. Wasserstrom, The Judicial Decision: Toward a Theory of Legal Justification 28-29 (1961).