Stipulating the law

Michigan Law Review

Volumn 109, Issue 7, 2011, Pages 1191-1236

  Lawson, Gary ^a  

^a BOSTON UNIVERSITY   (United States)

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EID: 79951783021     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Note

References (243)

1. 130 S. Ct. 3138 (2010).
2. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d 667, 685 (D.C. Cir. 2008) (Kavanaugh, J., dissenting), modified, 130 S. Ct. 3138 (2010). The twenty-year-old case to which Judge Kavanaugh referred was Morrison v. Olson, 487 U.S. 654 (1988).
3. Pub. L. No. 107-204, 116 Stat. 745 (2002) (codified at scattered sections of 11, 15, 18, 28, and 29 U.S.C.).
4. 15 U.S.C. § 7211(e)(4) (2006).
5. See infra notes 25-27 and accompanying text.
6. Free Enter. Fund, 130 S. Ct. at 3162-64.
7. See id. at 3151-61.
8. See id. at 3170-82 (Breyer, J., dissenting).
9. Compare id. at 3146-47 (majority opinion) (beginning the opinion by declaring that the "Constitution divided the powers of the new Federal Government into three defined categories, Legislative, Executive, and Judicial'" (quoting INS v. Chadha, 462 U.S. 919, 951 (1983)) and concluding that "multilevel protection from removal is contrary to Article II's vesting of the executive power in the President"), with id. at 3167, 3170 (Breyer, J., dissenting) (emphasizing "the importance of examining how a particular provision, taken in context, is likely to function" and insisting that "we should decide the constitutional question in light of the provision's practical functioning in context").
10. Citations to founding-era figures: majority-13, dissent-1 (not counting three citations to McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819)).
11. Citations to 20th or 21st century legal scholars: majority-0, dissent-22. Citations to non-originalist 20th and 21st century legal scholars: majority-0, dissent-18 (0- 21 if one counts Larry Lessig as "non-originalist").
12. The majority, following the lead of Judge Kavanaugh in the D.C. Circuit, appeared to take its existing precedents upholding removal restrictions as limitations on what might otherwise be a more sweeping presidential removal power derived from original meaning. The majority accepted its precedents but reasoned around them rather than from them. The dissent, by contrast, was willing to draw inferences from the removal precedents to extend them to new situations.
13. See Transcript of Oral Argument at 15-20, Free Enter. Fund, 130 S. Ct. 3138 (No. 08- 861).
14. See Free Enter. Fund, 130 S. Ct. at 3173 (Breyer, J., dissenting).
15. That is not at all surprising, as it is virtually certain that no such restrictions were meant to exist in 1934 when the Securities Exchange Act was passed. At that time, the governing precedent on removability of federal officers was Myers v. United States, 272 U.S. 52 (1926), which seemed to hold broadly that the president had the constitutional power to remove at will all executive officials.
16. See Free Enter. Fund, 130 S. Ct. at 3183 (Breyer, J., dissenting) ("Congress created the SEC at a time when, under this Court's precedents, it would have been unconstitutional to make the Commissioners removable only for cause."). Humphrey's Executor v. United States, 295 U.S. 602 (1935), with its novel constitutional validation of the "independent agency" whose head is removable by the president only for cause, was still a year away. While Congress is under no general obligation to conform its actions to governing Supreme Court precedent, it would make sense that Congress in 1934 would not bother trying to impose removal restrictions of doubtful constitutionality, especially on a president of its own party.
17. Steven G. Calabresi & Christopher S. Yoo, The Unitary Executive 283 (2008) ("[J]ust as Congress did not include any restrictions on presidential removals when it created the [Federal Power Commission] in 1927, it also failed to include any such restrictions when it created the Securities and Exchange Commission and the Federal Communications Commission.
18. Apparently, with one minor exception, in the aftermath of the Supreme Court's decision in Myers, Congress did not believe that such restrictions were worth the effort." (footnotes omitted));.
19. Peter L. Strauss, The Place of Agencies in Government: Separation of Powers and the Fourth Branch, 84 Colum. L. Rev. 573, 610 (1984) (noting that in the aftermath of Myers, Congress "ceas[ed] to provide removal protections in statutes creating new government agencies").
20. See infra notes 34-45 and accompanying text.
21. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d 667, 680 (D.C. Cir. 2008), modified, 130 S. Ct. 3138 (2010);
22. id. at 686-87 (Kavanaugh, J., dissenting).
23. See, e.g., SEC v. Blinder, Robinson & Co., 855 F.2d 677, 681 (10th Cir. 1988) ("The [Securities Exchange] Act does not expressly give to the President the power to remove a commissioner. However, for the purposes of this case, we accept appellants' assertions in their brief, that it is commonly understood that the President may remove a commissioner only for inefficiency, neglect of duty or malfeasance in office.'").
24. 130 S. Ct. at 3148-49 (emphasis added) (citations omitted).
25. Id. at 3182-84 (Breyer, J., dissenting) (citations omitted).
26. Tuan Samahon, A Whopper of an Assumption in Free Enterprise Fund v. PCAOB, Concurring Opinions (Mar. 8, 2010, 5:09 PM), http://www.concurringopinions.com/archives/2010/03/ a-whopper-of-an-assumption-in-free-enterprise-fund-v-pcaob.html.
27. See infra Part III.A.
28. 508 U.S. 448 (1993).
29. 15 U.S.C. § 7211(a), (c) (2006).
30. Id. § 7211(e)(4)-(5).
31. Id. § 7211(e)(6).
32. Id. § 7217(d)(3).
33. The standard removal restriction tracks the language governing removals of members of the Federal Trade Commission, which permits removal for "inefficiency, neglect of duty, or malfeasance in office.".
34. Id. § 41 (2000). As the majority in Free Enterprise Fund pointed out, there are various forms of "malfeasance" that do not appear to be grounds for removal of PCAOB members: The Act does not even give the Commission power to fire Board members for violations of other laws that do not relate to the Act, the securities laws, or the Board's authority. The President might have less than full confidence in, say, a Board member who cheats on his taxes; but that discovery is not listed among the grounds for removal under § 7217(d)(3).
35. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3152 (2010).
36. The D.C. Circuit described the SEC's power over the PCAOB as follows: [T]he Commission approves all Board rules, 15 U.S.C. §§ 7211(g), 7217(b)(2), and may abrogate, delete, or add to them, id. § 7217(b)(5). All Board sanctions are subject to plenary review by the Commission, id. § 7217(c)(2);.
37. NASD, 431 F.3d at 804, and the Commission "may enhance, modify, cancel, reduce, or require the remission of a sanction imposed by the Board," id. § 7217(c)(3).... It also may impose limitations upon Board activities, id. § 7217(d)(2), and relieve the Board of its enforcement authority altogether, id. § 7217(d)(1).
38. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d 667, 672 (D.C. Cir. 2008), modified, 130 S. Ct. 3138 (2010).
39. There is no universally accepted definition of an independent agency.
40. Gary Law-son, Federal Administrative Law 7 (5th ed. 2009). I use the term in a formal sense to describe an agency whose head is not removable at the will of the president, without regard for empirical facts about the congruence of agency decisions with presidential wishes. Cf. Free Enter. Fund, 130 S. Ct. at 3169-73 (Breyer, J., dissenting) (defining independent-agency status as turning on multiple legal and practical factors).
41. For the report, including Beckstead and Watts's response to it, see Pub. Co. Accounting Oversight Bd., PCAOB Release No. 104-2005-082, Inspection of Beckstead & Watts, LLP (2005), available at http://pcaobus.org (follow the "Inspections" hyperlink; then follow "Firm Inspection Reports" hyperlink; finally follow "Beckstead and Watts" hyperlink for the Sept. 28, 2005 Inspection).
42. Beckstead and Watts, LLP, http://www.becksteadwatts.com/ (last visited Feb. 6, 2011).
43. U.S. Const. art. II, § 2, cl. 2.
44. There were three parts to the Appointments Clause challenge: that because of the PCAOB's degree of independence from the SEC, the PCAOB's members are principal officers who can be appointed only by the president with Senate confirmation; that even if they are inferior officers, Congress can only vest their appointment in the president, the courts, or the "Heads of Departments," and the SEC is not a constitutional Department[].
45. SEC is a "Department[]," the collective body of SEC commissioners, as opposed to an individual person such as the Commission's chairperson, cannot be a constitutional "Head[]" of a department. For more discussion of the Appointments Clause issues in the case, including an issue not addressed by the Court but that I think was dispositive.
46. Gary Lawson, The "Principal" Reason Why the PCAOB is Unconstitutional, 62 Vand. L. Rev. En Banc 73 (2009), http://www.vanderbiltlawreview.org/2009/11/the-principal-reason-why-the- pcaob-is-unconsitutional/.
47. Complaint for Declaratory and Injunctive Relief at 20, Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., No. 06-0217 (D.D.C. Mar. 21, 2007), 2006 WL 316852.
48. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 2007 WL 891675, at *5 (D.D.C. Mar. 21, 2007), aff'd, 537 F.3d 667 (D.C. Cir. 2008), modified, 130 S. Ct. 3138 (2010).
49. See Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 537 F.3d 667, 679-84 (D.C. Cir. 2008), modified 130 S. Ct. 3138 (2010).
50. See id. at 679-80.
51. Id. at 697 (Kavanaugh, J., dissenting).
52. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 129 S. Ct. 2378 (2009) (mem.).
53. Brief for Petitioners at 25, Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138 (2010) (No. 08-861), 2009 WL 2247130.
54. Id. at 31.
55. Brief for the United States at 43, Free Enter. Fund, 130 S. Ct. 3138 (No. 08-861), 2009 WL 3290435 (quoting SEC v. Blinder, Robinson & Co., 855 F.2d 677, 681 (10th Cir. 1988)).
56. Id. at 43 n.15 (citation omitted).
57. Brief for Respondents Public Co. Accounting Oversight Board at 31, Free Enter. Fund, 130 S. Ct. 3138 (No. 08-861), 2009 WL 3327230.
58. See Brief of Law Professors as Amici Curiae in Support of Petitioners, Free Enter. Fund, 130 S. Ct. 3138 (No. 08-861), 2009 WL 2372919; Amicus Curiae Brief on the Merits of Mountain States Legal Foundation in Support of Petitioners, Free Enterprise Fund and Beckstead and Watts, LLP, Free Enter. Fund, 130 S. Ct. 3138 (No. 08-861), 2009 WL 2406377.
59. Transcript of Oral Argument at 15-16, Free Enter. Fund, 130 S. Ct. 3138 (No. 08-861), 2009 WL 4571555.
60. Id. at 16.
61. Id.
62. Id. at 17. It is an interesting commentary on the times that no one would think it a victory for the government to have the SEC placed under presidential control. It would not be a victory for the SEC or Congress, but it would be quite a victory for the president-if in fact the president were committed to a formalist view of separation of powers.
63. Id. When pressed further by Justice Breyer about the source of limitations on presidential removal of commissioners, Mr. Carvin invoked the five-year term of office granted to commissioners and the Supreme Court's 1958 decision in United States v. Weiner, 357 U.S. 349 (1958), in which the Court inferred a limitation on removal for members of the War Claims Commission even though the statute was silent on the point. Transcript of Oral Argument, supra note 46, at 18.
64. Id.
65. Id. at 22.
66. Id. at 46.
67. Id.
68. Id. at 51.
69. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3148-49 (2010) (emphasis added) (citations omitted).
70. See supra note 45. Those precedents included United States v. Perkins, 116 U.S. 483 (1886), and Morrison v. Olson, 487 U.S. 654 (1988), which both upheld certain restrictions on the removal of inferior officers, and Humphrey's Executor v. United States, 295 U.S. 602 (1935), which permitted so-called "independent agencies" whose heads were removable by the president only for cause.
71. See Free Enter. Fund, 130 S. Ct. at 3147 ("The parties do not ask us to reexamine any of these precedents, and we do not do so."). The parties also agreed that the members of the PCAOB were constitutional "Officers of the United States,".
72. Id. at 3148 (quoting U.S. Const. art. II, § 2, cl. 2), notwithstanding a statutory declaration that the PCAOB is not a government agency and its members are not government officers, 15 U.S.C. § 7211(b) (2006). The Court accepted that stipulation as well. See Free Enter. Fund, 130 S. Ct. at 3148.
73. Free Enter. Fund, 130 S. Ct. at 3153.
74. See supra note 19 and accompanying text.
75. 83 C.J.S. 2d Stipulations § 3, at 6 (2000).
76. See infra notes 69-74 and accompanying text.
77. U.S. Const. art. III, § 2, cl. 2 (providing for original Supreme Court jurisdiction in cases "in which a State shall be Party").
78. I am assuming for the moment that all litigation, including federal question "cases," requires a live dispute among parties. As an original matter, that is actually an interesting question.
79. Robert J. Pushaw, Article III's Case/Controversy Distinction and the Dual Functions of Federal Courts, 69 Notre Dame L. Rev. 447 (1994), but to explore the point would take us far afield.
80. 149 U.S. 308 (1893).
81. San Pablo & Tulare R.R. Co., 149 U.S. at 311-12.
82. The Court explained why it could not hear the case: [T]he court is not empowered to decide moot questions or abstract propositions, or to declare, for the government of future cases, principles or rules of law which cannot affect the result as to the thing in issue in the case before it. No stipulation of parties or counsel, whether in the case before the court or in any other case, can enlarge the power, or affect the duty, of the court in this regard.
83. See id. at 314. Earlier decisions were not always so fastidious about observing this norm.
84. Eric Kades, History and Interpretation of the Great Case of Johnson v. M'Intosh, 19 L. & Hist. Rev. 41, 99-101 (2001) (describing how Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823), may well have been a fictitious dispute founded upon knowingly false stipulations).
85. See Ex parte McCardle, 74 U.S. 506, 514 (1868) ("Without jurisdiction the court cannot proceed at all in any cause. Jurisdiction is power to declare the law, and when it ceases to exist, the only function remaining to the court is that of announcing the fact and dismissing the cause.");.
86. Sarah Rudolph Cole, Managerial Litigants? The Overlooked Problem of Party Autonomy in Dispute Resolution, 51 Hastings L.J. 1199, 1202 (2000).
87. 243 U.S. 281 (1917).
88. Swift & Co., 243 U.S. at 285.
89. Id. at 286.
90. See id. at 286 n.1.
91. Id. at 289.
92. The Court also cited Mills v. Green, 159 U.S. 651 (1895), but that case had nothing to do with stipulations; it merely affirmed the requirement of a live case or controversy for which effective relief can be given.
93. Of course, the "fact" of ownership of the track could easily be characterized as an issue of law rather than fact. The Court did not address this point but instead treated ownership as a stipulated fact. This merely demonstrates that the line between fact and law is functional and conventional rather than epistemological or ontological.
94. See infra notes 87-89.
95. One could frame it even more narrowly to encompass only circumstances in which the parties stipulate to an obvious lie on appeal, after the true facts were part of the decision below.
96. 340 U.S. 474 (1951).
97. Universal Camera Corp., 340 U.S. at 497 (citations omitted).
98. PPX Enters., Inc. v. Audiofidelity, Inc., 746 F.2d 120, 123 (2d Cir. 1984) (finding the stipulations in the case to be reasonable).
99. State Accident Ins. Fund Corp. v. Casteel, 719 P.2d 853, 854 (Or. 1986) (rejecting a stipulation that workers' compensation payments had been made on a single claim when the record clearly showed two separate claims).
100. 875 F.2d 293 (Fed. Cir. 1989).
101. Dillon, Read, & Co., 875 F.2d at 300.
102. See Dillon, Read & Co. v. United States, 15 Cl. Ct. 246, 265 n.7 (1988), vacated, 875 F.2d 293 (Fed. Cir. 1989).
103. Dillon, Read & Co., 875 F.2d at 300.
104. See, e.g., Hankins v. Lyght, 441 F.3d 96, 104 (2d Cir. 2006) ("We are required to interpret federal statutes as they are written... and we are not bound by parties' stipulations of law. We are not in the business of deciding cases according to hypothetical legal schemes....") (citations omitted);.
105. W.W.A. Annotation, Stipulations of parties as to the law, 92 A.L.R. 663, 664 (1934) ("It is the general rule that stipulations as to what the law is are of no validity.");
106. Am. Jur. 2d, Stipulations § 4 (2001) ("Parties to an action may not stipulate to legal conclusions to be reached by the court, It [sic] has generally been stated that the resolution of questions of law rests upon the court, uninfluenced by stipulations of the parties, and accordingly, virtually all jurisdictions recognize that stipulations as to the law are invalid and ineffective.") (footnotes omitted).
107. C.J.S. Stipulations § 28 (2000) ("Generally, the litigants may not stipulate as to what the law is, so as to bind the court.... Stipulations on questions of law will be disregarded, since rulings on questions of law must rest on the judgment of the court without being influenced by stipulations tendered by the parties or counsel....") (footnotes omitted).
108. Estate of Sanford v. Comm'r, 308 U.S. 39, 51 (1939).
109. Kamen v. Kemper Fin. Servs., Inc., 500 U.S. 90, 99 (1991).
110. Gary Lawson, Proving the Law, 86 Nw. U. L. Rev. 859, 862-77 (1992).
111. For what I regard as the definitive refutation of either an epistemological or ontological distinction between fact and law, see Ronald J. Allen & Michael S. Pardo, The Myth of the Law-Fact Distinction, 97 Nw. U. L. Rev. 1769 (2003).
112. See U.S. Const. art. III, § 2, cl. 2 (providing for Supreme Court appellate jurisdiction "both as to Law and Fact");
113. id. amend. VII ("[N]o fact tried by a jury shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.").
114. AA Charles Alan Wright et al., Federal Practice and Procedure § 3974.1 (4th ed. 2008).
115. This is not to say that courts never choose to reexamine precedents that the parties are willing to accept, see, e.g., Pearson v. Callahan, 552 U.S. 1279 (2008) (directing the parties to brief the question whether to overrule a precedent), but only that such events are relatively rare.
116. See, e.g., Auto-Owners Ins. Co. v. Websolv Computing, Inc., 580 F.3d 543, 546-47 (7th Cir. 2009) (reversing a district court for conducting an independent choice-of-law analysis when the parties had already agreed on the applicable forum).
117. In re Cullinan, 113 A.D. 485, 486 (N.Y. App. Div. 1906).
118. Carmody-Wait, Cyclopedia of New York Practice, Stipulations § 7.19, at n.12, available at CW2d § 7.19 (Westlaw through 2010).
119. See In re N.Y., Lackawanna & W. R.R., 98 N.Y. 447, 453 (1885).
120. See Levy v. Del., Lackawanna & W. R.R., 211 A.D. 503, 505-06 (N.Y. App. Div. 1925).
121. See Bank of N.Y. v. Amoco Oil Co., 35 F.3d 643, 650 (2d Cir. 1994) ("Under the law of New York, the parties may stipulate that the law of a state bearing a reasonable relation to the transaction governs their rights and duties under the transaction. N.Y.U.C.C. § 1-105(1).").
122. See, e.g., Koren-DiResta Constr. Co., v. N.Y. City Sch. Constr. Auth., 740 N.Y.S.2d 56, 61 (N.Y. App. Div. 2002) (accepting a stipulation to the time when a contractor's claim accrued).
123. Amanda Frost, The Limits of Advocacy, 59 Duke L.J. 447, 450 (2009).
124. Act of Sept. 7, 1916, ch. 461, 39 Stat. 752 (codified as amended at 12 U.S.C. § 92 (2006)). The statute also authorized such banks to "act as the broker or agent for others in making or procuring loans on real estate located within one hundred miles of the place in which said bank may be located." Id. (amended 1982). Whatever the objective fate of the rest of section 92 may ultimately be, this latter provision has not survived.
125. The 1980 census figure, which controlled the litigation involving the National Bank of Oregon, was 489. Nat'l Ass'n of Life Underwriters v. Clarke, 736 F. Supp. 1162, 1164 n.6 (D.D.C. 1990).
126. Even in the 2000 census, Banks had a population of only 1,286. Banks Oregon Demographics, Hometown USA, http://banksor.htu.myareaguide.com/demographics.html (last visited Feb. 6, 2011).
127. Clarke, 736 F. Supp. at 1163.
128. Id. at 1167-73.
129. For background on the Chevron doctrine, see Lawson, supra note 29, at 442-573. On second thought, that is a ridiculous amount of reading, so don't bother.
130. The entire corpus of federal statutory law at that time contained 5,602 sections.
131. Revised Statutes of the United States § 5202 (1875) (amended 1913) (providing that national banks can only be indebted by notes, deposits, drafts drawn against actual deposits, and dividend liabilities to shareholders).
132. Federal Reserve Act of 1913, § 13, 38 Stat. 264.
133. Act of Sept. 7, 1916, ch. 461, 39 Stat. 752.
134. Id. at 753.
135. War Finance Corporation Act, ch. 45, § 20, 40 Stat. 506 (1918).
136. Id.
137. See Indep. Ins. Agents of Am., Inc. v. Clarke, 955 F.2d 731, 736 (D.C. Cir. 1992).
138. Garn-St. Germain Depository Institutions Act of 1982, Pub. L. No. 97-320, § 403(a), 96 Stat. 1469, 1511 (removing the authority of national banks in small communities to broker real estate loans).
139. Competitive Equality Banking Act of 1987, Pub. L. No. 100-86, § 201(b)(5), 101 Stat. 552, 583.
140. See U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 443 n.2 (1993) (collecting cases).
141. For a brief but thorough account of the intriguing story behind this action by the compilers, see id. at 441-42 & n.1.
142. Clarke, 955 F.2d at 741 (Silberman, J., dissenting).
143. Id. at 733 (majority opinion).
144. Id.
145. Id.
146. A contemporaneous panel of the Second Circuit, also reaching the issue even though it had not been briefed by the parties, reached the opposite conclusion, finding that Congress did not intend in 1918 to repeal section 92. Am. Land Title Ass'n v. Clarke, 968 F.2d 150, 152 (2d Cir. 1992).
147. Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983).
148. Clarke, 955 F.2d at 743.
149. Id. at 744.
150. Indep. Ins. Agents of Am., Inc. v. Clarke, 965 F.2d 1077, 1078 (D.C. Cir. 1992) (Sentelle, J., concurring in the denial of rehearing en banc) (citations omitted).
151. Id. at 1078-79 (Silberman, J., dissenting from the denial of rehearing en banc).
152. Id. at 1079 n.1. Judge Randolph, for his part, took issue with the entire modern practice of providing statements in connection with denials of rehearing: In my view, denials of rehearing en banc are best followed by silence.
153. Id. at 1080 (Randoph, J., writing a separate statement).
154. U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 448 (1993).
155. To be sure, then-Justice Scalia, in deciding a case in 1992 on the basis of an inconsistency between a regulation and a statute that no party raised, wrote:
156. I must acknowledge that the basis for reversing the Court of Appeals on which I rely has not been argued by the United States, here or below. The rule that points not argued will not be considered is more than just a prudential rule of convenience;.
157. Its observance, at least in the vast majority of cases, distinguishes our adversary system of justice from the inquisitorial one. Even so, there must be enough play in the joints that the Supreme Court need not render judgment on the basis of a rule of law whose nonexistence is apparent on the face of things, simply because the parties agree upon it-particularly when the judgment will reinforce error already prevalent in the system.
158. United States v. Burke, 504 U.S. 229, 246 (1992) (Scalia, J., concurring in the judgment) (citations omitted). See also NASA v. Nelson, 131 S. Ct. 746, 766 n. (Scalia, J., concurring in the judgment) (refusing to assume, as did the majority pursuant to the agreement of the parties, that there is a constitutional right to informational privacy).
159. U.S. Nat'l Bank of Or., 508 U.S. at 447.
160. Id. at 447-48.
161. See id. at 448-63. Given the clear language of the relevant statutes, this conclusion took some doing-which is why the Court's discussion consumed more than fifteen pages.
162. See Frost, supra note 99.
163. Adam A. Milani & Michael R. Smith, Playing God: A Critical Look at Sua Sponte Decisions by Appellate Courts, 69 Tenn. L. Rev. 245 (2002).
164. Barry A. Miller, Sua Sponte Appellate Rulings: When Courts Deprive Litigants of an Opportunity to Be Heard, 39 San Diego L. Rev. 1253, 1288-96 (2002).
165. Or at least to settle disputes that are appropriate for resolution through the particular legal system at issue. The American legal system is not designed to settle, for example, disputes between my kids about who gets to make first use of a new video game. But one could imagine legal systems that handle such matters. What is considered a "legal" dispute is a function of the norms of any particular legal system. And importantly, to say that a dispute is "legal" is to say only that dispute-resolution machinery is available to resolve it; it says nothing about the manner in which that machinery will or must operate.
166. Alexander Hamilton vs. Aaron Burr, New York, 1804.
167. Malcolm Reynolds vs. Atherton Wing, Persephone, 2517.
168. Chad M. Oldfather, Defining Judicial Inactivism: Models of Adjudication and the Duty To Decide, 94 Geo. L.J. 121, 129-130 (2005).
169. A clever person might even construct a normative argument for such a regime on the ground that "sometimes the fact that a lawsuit has not resulted stems from ignorance, poverty, or alienation rather than from satisfaction with the status " Geoffrey R. Stone et al., Constitutional Law 91 (6th ed. 2009).
170. That is certainly true of the federal courts, which are granted only "[t]he judicial Power of the United States," U.S. Const. art. III, § 1, and no other authority other than the specifically-granted power to appoint inferior officers if Congress so directs. See id. art. II, § 2, cl. 2. Nothing prevents individual states from granting to their courts what the federal Constitution would regard as nonjudicial power, but no state authorizes the kind of "investigatory court" described in the text.
171. Of course, if the parties agree on too much, there might be no underlying dispute to resolve.
172. Martin H. Redish & Adrianna D. Kastanek, Settlement Class Actions, the Case-or-Controversy Requirement, and the Nature of the Adjudicatory Process, 73 U. Chi. L. Rev. 545, 548 (2006) ("There is simply no rational means of defining the terms 'case' or 'controversy' to include a proceeding in which, from the outset, nothing is disputed and the parties are in complete agreement."). I am addressing only circumstances in which the parties agree on certain propositions while disagreeing on enough others to generate an actual dispute.
173. See supra notes 118-126 and accompanying text.
174. Indep. Ins. Agents of Am., Inc., v. Clarke, 965 F.2d 1077, 1079 (D.C. Cir. 1992) (Silber-man, J., dissenting).
175. Id. at 1079 n.1.
176. Id. at 1078 (Sentelle, J., concurring).
177. U.S. Nat'l Bank of Or. v. Indep. Ins. Agents of Am., Inc., 508 U.S. 439, 447 (1993).
178. 149 U.S. 308 (1893).
179. Note that because Independent Insurance Agents, as the district court ruled, was really a "step two" Chevron case, the decisive legal issue as the parties framed the case was not the objective meaning of section 92 but rather whether the comptroller's interpretation of section 92 was within the range of interpretations permissible under Chevron. Indep. Ins. Agents of Am. v. Clarke, 955 F.2d 731, 732-33 (D.C. Cir. 1992).
180. Owen M. Fiss, Comment, Against Settlement, 93 Yale L. J. 1073, 1085 (1984).
181. Sarah M.R. Cravens, Involved Appellate Judging, 88 Marq. L. Rev. 251, 255-56 (2004).
182. Such a suggestion is not entirely farcical; some scholars have suggested the possible value of modeling at least some features of judicial decision making after agency notice-and-comment rulemaking.
183. Michael Abramowicz & Thomas B. Colby, Notice-and-Comment Judicial Decisionmaking, 76 U. Chi. L. Rev. 965 (2009).
184. Pushaw, Jr., supra note 64, at 447-50 (linking justiciability doctrines to dispute resolution and arguing that "cases" require different justiciability norms than "controversies" because in the former federal courts are meant to serve a law-declaration function).
185. See Miller, supra note 134, at 1263.
186. Lon L. Fuller, The Forms and Limits of Adjudication, 92 Harv. L. Rev. 353 (1978).
187. For an extended discussion of this point, see Robert G. Bone, Lon Fuller's Theory of Adjudication and the False Dichotomy Between Dispute Resolution and Public Law Models of Litigation, 75 B.U. L. Rev. 1273 (1995).
188. Owen M. Fiss, The Supreme Court, 1987 Term: Foreword: The Forms of Justice, 93 Harv. L. Rev. 1, 30 (1979) (describing dispute resolution as "one consequence of the judicial decision," but insisting that "the function of the judge-a statement of social purpose and a definition of role-is not to resolve disputes, but to give the proper meaning to our public values").
189. A possible implication of this law-declaration model, which Fiss explicitly draws, is that settlement and arbitration should be discouraged. From the standpoint of economics, one might further argue that law is a public good whose value is eroded by private dispute resolution.
190. Keith N. Hylton, Agreements to Waive or to Arbitrate Legal Claims: An Economic Analysis, 8 Sup. Ct. Econ. Rev. 209, 243-47 (2000).
191. See, e.g., Frost, supra note 99, at 496-98;
192. Oldfather, supra note 138, at 139-49. To some extent, Fuller and Fiss talk past each other, because Fuller's focus is on private-law ordering while Fiss is concerned primarily with public-law litigation. I do not believe that anything of consequence in my analysis turns on a distinction between private and public law.
193. Frost, supra note 99, at 452.
194. Bone, supra note 155, at 1275;
195. Leandra Lederman, Precedent Lost-Why Encourage Settlement, and Why Permit Non-Party Involvement in Settlements?, 75 Notre Dame L. Rev. 221 (1999).
196. Fiss, supra note 149, at 1089.
197. Indeed, there may even be due process considerations if litigation between two parties effectively determines the rights of third parties who are not participants in the dispute.
198. Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003).
199. Frost, supra note 99, at 453;
200. Cravens, supra note 150, at 255.
201. In previous works, I have strongly questioned the role of precedent in federal constitutional (and statutory) decision making, suggesting that anything beyond a very weak, qualified use of precedent as a possible source of knowledge about the law is affirmatively unconstitutional.
202. Gary Lawson, The Constitutional Case Against Precedent, 17 Harv. J.L. & Pub. Pol'y 23 (1994);
203. Gary Lawson, Mostly Unconstitutional: The Case Against Precedent Revisited, 5 Av e Maia L. Rev. 1 (2007).
204. My arguments here, however, cover contexts far beyond federal constitutional and statutory claims, and in those contexts, such as garden-variety common-law decision making, those arguments have no force or application. Indeed, in unpublished work with Steve Calabresi, I have vigorously defended a judicious use of precedent in common-law adjudication. So none of my arguments here depends on a suspicion or criticism of precedent per se, even if I am inclined to indulge such suspicions or criticisms in limited contexts.
205. Larry Alexander & Frederick Schauer, On Extrajudicial Constitutional Interpretation, 110 Harv. L. Rev. 1359, 1371-76 (1997);
206. Tara Leigh Grove, The Structural Case for Vertical Maximalism, 95 Cornell L. Rev. 1 (2009).
207. Gary Lawson, Interpretative Equality as a Structural Imperative (Or "Pucker Up and Settle This!"), 20 Const. Comment. 379 (2003).
208. Friedrich A. Hayek, Law, Legislation and Liberty (1973).
209. Frost, supra note 99.
210. 5 U.S. (1 Cranch) 137, 177 (1803).
211. In fact, it is questionable whether any such determination was made, even implicitly, as it is doubtful whether the Judiciary Act of 1789 actually purported to create such original jurisdiction in the Supreme Court. For a brief account of the scholarly debate over Chief Justice Marshall's interpretation of section 13 of the Judiciary Act in Marbury.
212. Edward A. Hartnett, Not the King's Bench, 20 Const. Comment. 283, 286-90 (2003). I take the Court's decision at face value here.
213. The poster child for this position is Cooper v. Aaron, 358 U.S. 1 (1958), with its bald declaration that "the federal judiciary is supreme in the exposition of the law of the Constitution," id. at 18, and that Supreme Court decisions are therefore "the supreme law of the land," id. Frost appears to accept that judicial supremacist position.
214. Frost, supra note 99, at 472 (saying that, until they are overridden by statutes or constitutional amendments, "judicial pronouncements are the law for all the citizens to follow").
215. See Alexander & Schauer, supra note 164.
216. Michael Stokes Paulsen, The Irrepressible Myth of Marbury, 101 Mich. L. Rev. 2706 (2003).
217. Frost, supra note 99, at 471.
218. Id. at 472.
219. Professor Pushaw has argued that law declaration was an expected function of federal courts, especially in federal question, admiralty, and foreign dignitary cases. Pushaw, Jr., supra note 64, at 476-83.
220. But while this may establish that there should be different justiciability requirements for different classes of disputes in federal courts, it does not speak to whether courts may or should disregard party agreement on questions of law. Law declaration is absolutely a crucial aspect of the judicial function whenever the parties disagree about the applicable law. That does not make courts law declarers first and dispute resolvers second, nor does it say to prefer the first role over the second in the event of conflict.
221. David E. Engdahl, Intrinsic Limits of Congress' Power Regarding the Judicial Branch, 1999 BYU L. Rev. 75, 149 n.278.
222. Frost, supra note 99, at 472. Frost goes on to say that deciding cases based on the parties' arguments and proofs "would transform the federal courts from the third branch of government responsible for declaring the meaning of law into a private arbitration service working for the parties and no one else.".
223. Id. at 474.
224. Id. at 479.
225. Does this mean that on a party-centered approach, the parties could stipulate to any dispute-resolving methodology, including coin flips (or duels), and courts must apply them? My libertarian streak screams to say "yes," but I am not sure that that is correct. At least at the federal level, courts exercise the "judicial Power of the United States." It may be that the term "judicial Power" limits the range of actions that courts can take; a court that flips a coin, even on the stipulation of the parties, may not be exercising "judicial Power." Thus, the right answer may be that parties can choose among the range of decision-making methodologies that are within the compass of the constitutional power of courts. State courts may similarly be limited by their own constitutions.
226. Frost, supra note 99, at 479.
227. Free Enter. Fund v. Pub. Co. Accounting Oversight Bd., 130 S. Ct. 3138, 3184 (2010) (Breyer, J., dissenting). Avoidance can involve construing statutes to avoid constitutional issues and choosing to decide statutory questions before addressing constitutional issues.
228. For an enlightening discussion of substantive canons and the difficulties of defending many of them.
229. Amy Coney Barrett, Substantive Canons and Faithful Agency, 90 B.U. L. Rev. 109 (2010).
230. Frost, supra note 99, at 481-82.
231. Coming up with an appropriate fee schedule is not a simple or costless task. But figuring out under existing law whether to accept party agreement on a legal question, such as the continuing vitality of existing precedent, is no picnic either. Decisions are never costless.
232. Frost, supra note 99, at 483.
233. See id.
234. See id. at 487.
235. To be sure, Frost is correct that "[s]cholars generally agree that the executive has to obey Supreme Court pronouncements about the meaning of the Constitution, even when the executive disagrees with the Court.".
236. Id. at 489. I respectfully dissent.
237. Gary Lawson & Christopher D. Moore, The Executive Power of Constitutional Interpretation, 81 Iowa L. Rev. 1267 (1996) (arguing that the president has no obligation to afford even modest deference to Supreme Court opinions, and that he may, and indeed must, defy even specific judgments the president believes are clearly mistaken).
238. Michael Stokes Paulsen, The Most Dangerous Branch: Executive Power to Say What the Law Is, 83 Geo. L.J. 217 (1994).
239. Frost, supra note 99, at 487.
240. The majority included, by the way, such conservative stalwarts as David Sentelle, Jim Buckley, and Karen Henderson.
241. Gary Lawson, Conservative or Constitutionalist?, 1 Geo. J.L. & Pub. Pol'y 81 (2002).
242. For a much more detailed and thoughtful account than I provide here of this practice and its implications, see Cravens, supra note 150, at 274-82.
243. Brief of Law Professors, supra note 45.