5.11 Rights: appendages of government structures

(Eleventh in series: The interpretation of statutes and the denial of judges' powers.)

If the drift of constitutional construction conforms to the structural blueprint, then what about protective, as opposed to structural, constitutional doctrines? The constitutional blueprint describes much more than government structure, but if checks and balances lies deep within a constitutional blueprint that emphasizes the division of powers between government branches, then civil rights come to comprise an aspect of the structural division of powers. Regardless of "original intent," interpretation will drift toward a structural alignment between rights and governmental branches, exercise of some rights strengthening one branch and diminishing another; the reverse for other rights. Some easy examples: the writ of habeas corpus strengthens the judicial branch and checks the executive branch; procedural due process checks both the executive and judiciary and strengthens the legislature.

Free speech at first blush seems less amenable to a structural interpretation, but the apparent complexity comes from the two separate free-speech components, each playing a different functional role. Restricting free speech means both regulating the viewpoints expressed (content restriction) and regulating the amount of speech allowed (time-place-and-manner restriction). Power's Congressional exercise depends on public opinion, as monolithic swings enhance the legislature's ability to act. Viewpoint discrimination preserves a monolithic public, as is in the legislative interest. Interpreting the First Amendment as primarily against viewpoint discrimination is encouraged by the First Amendment's targeting Congress for its directive: "Congress shall make no law ... abridging the freedom of speech ..." While Congress instinctively favors viewpoint discrimination, Congress naturally opposes restrictions decreasing the quantity of speech. A huge volume of speech nourishes the swings of unified opinion that empower Congress. The threats to speech quantity come primarily from the executive branch, too much speech upsetting administrative quietude.

A system of checks and balances gives rise to checks nested within other checks, division of the legislature into two houses a high-level example. In smaller grain, the same regulatory system emerges for the exercise of rights themselves, one right checking another. Although First Amendment law isn't cast in the form of a balancing test, the reigning clear-and-present danger test essentially involves balancing.

5.10 Against the writ of certiorari

(Tenth in series: The interpretation of statutes and the denial of judges' powers.)

Let's apply this theory of constitutional interpretation to the modern problem of nonprecedential opinions: oppositionists interpret the judicial power, limited to cases and controversies, as excluding the right to choose which cases make law. To apply the structure-function theory, first evaluate the interpretation for fit with the separation of powers and the system of checks and balances. The separation of powers departmentalizes the major government functions; so the interpretation offered strengthens separation of powers by drawing a firmer line between judicial and legislative functions. Giving government branches certain contrafunctional duties furthers the system of checks and balances, but checks and balances, partly countervailing against separation of powers, is harder to assess. The checking power must facilitate the intruding branch's stymying of other branches but not initiating their functions. The power to choose which cases are precedential is suitable for fostering an independent judicial agenda, not well tailored to block those of other branches: think of the presidential veto or congressional ratification of presidential appointments.

Nonprecedential opinions violate a core structural feature of the U.S. Constitution, but criticism hasn't been influential among most judges. To assess the practice's durability under the structure-function theory, you must also consider how far our other norms depart from constitutional blueprint. If even without the distortion introduced by nonprecedential opinions, the judiciary still assumes legislative functions, the pull toward reforming the practice diminishes. Seemingly unnoticed by the critics of unpublished opinions, the judiciary's usurpation of legislative functions long predated nonprecedenntial opinions. A still more important deviation from norms occurred when the Judges Act of 1925 gave the U.S. Supreme Court the power to choose its cases.

Case selection invokes a legislative function in the same way as nonprecedential opinions; choosing which cases to review is even further removed from deciding cases and controversies than deciding which cases to publish. The legislative nature of nonprecedential cases may seem greater because delaying the decision allows the court to base precedent creation on firmer nonjudicial information. Although the court must decide before hearing the case, and it doesn't know how the case will go, the appellate courts do well in prediction. The U.S. Supreme Court reverses 75% of cases it selects for review, a good percentage if the court wants to make law. When a court selects its cases, it makes a restrictive legislative selection without even hearing the other cases.

Little fanfare accompanied huge change introduced by the Judges Act, which Chief Justice William Howard Taft pushed for efficiency's sake. Lawyers missed the judicial-expansionist nature of the writ of certiorari because the Supreme Court was almost unreservedly popular during this politically reactionary era, and commentators viewed the Judges Act as decreasing the Supreme Court's power, Taft hardly being an "activist." The Judges Act of 1925 gives opponents of the political power of unrepresentative officials today an obstacle and an avenue seldom mentioned. Congress should strip the Supreme Court of its power to select cases. Limiting Supreme Court review to cases which show a conflict between federal circuits is one alternative, provided the Supreme Court must review all conflicting cases where a party appeals from the Court of Appeals. The Supreme Court's power to select cases for review burdens democracy at the same time as it conflicts with constitutionalism. Politicians who tempt Supreme Court justices to exercise legislative power while criticizing them for pursuing a political agenda act as ineffectually or hypocritically as U.S. bank regulators.

5.9 The common law of statutory and constitutional construction

(Ninth in series: The interpretation of statutes and the denial of judges' powers.)

Can we really avoid a deliberative theory? Perplexity comes from the apparent incoherence of interpretation without defined constraints. "What are we searching for when we construe a statute [or a constitutional provision]," asks Justice Scalia in Common-law Courts in a Civil-Law system: The Role of United States Federal Courts in Interpreting the Constitution and Laws. From the perspective of a legal formalist like Justice Scalia, the absence of an ultimate objective — of the whole point of the interpretive enterprise — is deeply disturbing and fatal indictment of contemporary jurisprudence.

Justice Scalia claims that the common law method of developing the law is restricted to certain traditional fields like torts, contracts, and property. The common law has become irrelevant to the bulk of legal rules, and, today, the courts must construe statutes, instead of creating rules of law in common-law fashion. Even assuming the dubious notion of statutory interpretation without rule creation, Justice Scalia refrains from analyzing interpretive-principle creation — whether canonical or local, express or tacit.

Justice Scalia and most theorists ignore the ongoing common-law evolution of interpretive rules because they think interpretive principles and small-scale inference patterns don't bind as precedent, but terming the interpretive methods narrow, fact-specific, and defeasible would be more precise than terming them nonprecedential. Commentators who say interpretive methods lack even subjective precedential force conceive "methods" broadly, as though these must apply with the same scope as deliberative theories of interpretation, like Interpretivism and Originalism: theories that describe process, rather than outcome.

The deliberative theories bear the same relationship to narrow-scope and defeasible principles of interpretation as statutory law bears to the common law. Both replace tentative standards amenable to piecemeal evolution—having determinate rules and a reliable evolutionary mechanism—with a method perfectible in principle and dependent on consciously taken singular acts, which are sometimes broad in impact. Justice Scalia, exponent of codification, is consistent in also embracing the interpretive analog of codification, broad deliberative theory of interpretation; but the principles of statutory and constitutional construction are subject to common-law development because most judges resist interpretive theories.

5.8 Constitutions are inherently meaningless

(Eighth in series: The interpretation of statutes and the denial of judges' powers.)

The present theory expounds a manner of Constitutional construction as a trend issuing from the Constitution's structural features and their central role in using the Constitution as a government blueprint. For the constitution to produce a workable government, it must cause, not recommend, obedience to its structural design and the goals normally served by these design features. This theory differs from the usual run of theories, such as Originalism and Interpretivism, in absence of mandate. The only thing to be said for relying on this structure-function theory of interpretation in performing interpretation is that it will help you pick the interpretation with some likelihood of being deemed right in the long-term. Arguments tend to gain force to the extent that they line up with the predictions the theory makes. Described is the only theory needed to solve the problem for a theory of interpretation, the interpretive enigma.

Not merely the only theory we need, it is as much of a theory as we can have. The constitutions of some jurisdictions, containing clauses instructing on the manner of interpreting the constitution, show why we can't have a deliberative theory. Express provisions often instruct to look first to the ordinary meaning of the terms and stop there in the absence of ambiguity. Interpreters of constitutions without explicit provision for their interpretation usually arrive at this conclusion, and it doesn't rescue them from interpretive conflict; this provision could increase interpretive-method differences because it causes an explicit focus on a particularly subtle meta-theoretic issue. Whether it increases or decreases the interpretive variance, it doesn't eliminate or trivialize it. Any written standard must be interpreted. It is fundamentally in a position no different from other constitutional provisions.

Sometimes theorists maintain that a method of interpretation is implicit in having a written constitution. Since the constitution enacts words for the general public obedience, these theorists say, having a written constitution implicitly means using a textualist method of interpretation, but a text can't adequately dictate methods to interpreters. A common rejoinder points out that the people enacted the text, not some associated meanings or not the intent behind the text, and so, if the Framers had wanted the country to look to their motives, they could have said so in the text. The rejoinder begs the question. Provisions were enacted; but to construe the voting ritual as an endorsement of the text may seem natural, yet it is logically arbitrary.

Why does it seem natural to interpret a provision as equivalent to its text? Not because in interpreting cultural products in general we impose these limits. When a drillmaster counts the march beat, the numbers or other sounds he uses are beside the point. To interpret is to assign meaning relative to current purposes channeled by habit; interpreting laws by the public meaning of their text is natural because of myriad legal habits. A constitution means nothing except in a culture prepared to receive it, and it means what it does only because of the manner of reception given by habits of thought.

If a culture prepared to interpret the constitution preconditions its playing an actual governing role, a constitution will produce workable government only to the extent that interpreters are impelled to choose an interpretation that reliably ensures sufficiently coherent development. The constitution's actual provisions must cause their "correct" interpretation by means other than direct mandate or implicit direction.

5.7 Exploring the Interpretive Enigma

(Seventh in series: The interpretation of statutes and the denial of judges' powers.)

The interpretive enigma shows that it is impossible to interpret the constitution without a theory of constitutional interpretation. What it doesn't show is that there must be a unique reigning theory of interpretation. A different theory for different circumstances remains within the model. If courts use different theories depending on circumstances, the conceptual device assigning situation to theory is itself an overarching theory. Rather than choosing a theory based on a shared rationality, judges might choose theories arbitrarily, or they might use different overarching theories. Then no underlying idealization would depict the causal propensities in interpretive discourse.

How can we distinguish these conditions? If judges used different theories of constitutional interpretation, over time interpretations of the constitution would increasingly diverge. Increasingly, as schools of thought multiply, any consensus on the meaning of constitutional provisions would thin unless matters change with stare decisis. Broad precedential holdings may replace constitutional amendment in clarifying the constitution. The convergence new constraints impelled would offset the divergence of views, but this solution presupposes what it tries to explain, the progressive clarification of text by interpretation, a broad amendment-like holding requiring interpretation no less than the provision it construes. Precedent doesn't solve the clarification problem if precedential holdings also require interpretation, and the need to revisit interpretations seems too rare in comparison to construing the underlying text. The progression implies that the constitution is not only adapted to new circumstances but is better understood or at least more narrowly understood, so it is more reliably applied as it is further interpreted.

The underlying features that require consistent application to create a stable system are predominantly the formal functional characteristics of the structures the Constitution creates. Checks and balances and separation of powers are among the key formal functions of U.S. Constitutional structures.

5.6 Adjudicating without a theory of Constitutional interpretation

(Sixth in The interpretation of statutes and the denial of judges' power series.)

Substantive Constitutional questions are eventually settled semi-permanently, but methods of Constitutional interpretation are rarely settled. This order of business is irrational because fundamental disagreement about interpretive methods obstructs judicial debate about specific provisions' meaning. How can you debate what the Constitution means when you don't agree about what it means for the Constitution to "mean" something?

One proposed pragmatist solution (Mitchell N. Berman, Originalism is Bunk (2009) 84 N.Y.U. L. Rev. 1; hat tip, Legal Theory Blog) illustrates the problem besetting pluralist resolutions of the problems of interpretation. As a description of much of the judiciary's workings, this account seems approximately right, but it doesn't solve the interpretive enigma: how can judges debate Constitutional meaning when they disagree about the basic nature of the meaning they're trying to elucidate? If the courts solve the problem of interpretation in tandem with the substantive issue presented, as Berman argues, what interpretive method do the courts use for that amalgamated determination?

The point is easiest to understand from a hypothetical Berman provides concerning a non-Constitutional matter that yet addresses how the court might select interpretive methods contextually. (Berman, Originalism is Bunk, supra, at p. 45.) A radio station offers a reward to the first call-ins after 12 a.m., which the offeror believed means noon. Listeners satisfying the literal (earlier) midnight opening sue based on public meaning. To avoid considerations of equity unrelated to meaning, imagine the governing statute refers simply to "meaning." Should the court respect the offeror's meaning or the public meaning?

Claims Berman, the court doesn't need an interpretive theory to read "meaning" as public meaning because it is least disappointing to the rightful expectations of participants and most consistent with the function of announcements, but what makes those factors criterial? A tacit interpretive theory leads Berman to select interpretive methods according to the public purpose of the message and the expectations of the recipients. A pragmatist standard, it elevates short-term satisfaction and sets shallow goals achievable with certainty. (An alternative standard might be formalist and seek to align the meaning of "meaning" as used throughout the code.) Berman's pragmatist stance injects judicial preferences into the decision, although doing so in the hypothetical is relatively innocuous. Berman's approach in principle amounts to a form of result-driven adjudication, so universally rejected (again, in principle) and deemed so insulting as an accusation that in some jurisdictions an attorney may be sanctioned for disrespect after so describing a decision.

5.5 Textualism = American Constitutionalism

(Fifth in The interpretation of statutes and the denial of judges' power series.)

Textualism better than purposivism represents the American republican form of government, a system of checks and balances with the judiciary co-equal, because textualism supplies the courts with a basis for substantive opposition to the legislature. Textualism's natural fit with American constitutionalism was obscured after the demise of natural-law jurisprudence because the Supreme Court's resistance to progress was broken by an executive and legislative coalition, coercing the judiciary to speak the purposivist language of legislative supremacy. Not that the outcome was unfortunate: the point is that this deviation from constitutional blueprint was an unreliable basis for political planning. That the judiciary would eventually find a substitute for natural law was always likely, maybe inevitable.

If the courts are to check and balance the legislature, their opinions must have a source of legitimatization. The American constitution doesn't envision courts supplanting the legislature by the legislature's own devices, yet the constitution does envision that the judiciary exercise substantive checks and balances. When the Framers debated the constitution, they defended the independent judiciary because it could refuse to apply oppressive or unwise laws, a point Hamilton argued in the language of his time's natural-law jurisprudence. Today the only basis for the courts to disagree with the legislature outside the narrow set of constitutional cases is to oppose statutory text to legislative will. Textualism substitutes for conventional natural law the modern imperative to say what you mean.

Adherence to textualism doesn't let the courts veto any legislation that it thinks "oppressive or unwise," but laws that don't say what they mean are themselves a form of oppression. Such laws not only fail to inform citizens of their duties but allow the legislature to achieve indirectly what it would be ashamed to seek expressly. Misdescribing its intentions can also help the legislature engage in self-deception, so it may oppress by seemingly expressing the opposite.

When natural law broke down under F.D.R.'s direct political attack, the positivists' theoretical fire, and science's siege of theism's credibility, the will of the people was substituted for natural law, but it was a poor substitute. A unitary popular will, manifested in the decisions of elected representatives, can hardly check and balance itself. In retreat waving a purposivist white flag, the courts submitted to domination by other branches of government — at least when compared to the commandingly doctrinal laissez-faire economics that preceded. While the longevity of this arrangement proves the limited strength of interpretation's migratory tendency toward juridical coherence, it also illustrates that tendency. The eventual textualist reversal of direction occurred because the constitutional system allowed — was inherently conducive to — the courts' being much more than Congress's faithful servant. Textualism gave the courts room to assert independent power.

In principle textualism's initial form expanded judicial power beyond constitutional boundaries by providing few real constraints on interpretation, but increasingly textualism has become more restrained, almost merging with a restrained form of purposivism on its near left. This is its present internally driven trend, corresponding to a better fit with the constitutional blueprint and its purposes.

Next: The practical significance of the U.S. Constitution's democratic shortcomings.

5.4 Correctness and Legal Efficacy

(Fourth in The interpretation of statutes and the denial of judges' power series.)

The first concern when evaluating textualism and purposivism against constitutional imperatives is whether talk of "the correct interpretation of constitutions and statutes" is even meaningful. Even if comparison against an objective standard is possible, why does it matter whether the interpretation is correct when the better policy contravenes the so-called correct interpretation? As I am more enthusiastic about the dictates of democracy than the specifics of the U.S. Constitution, what significance should it have, as I will claim, that a form of textualism better expresses constitutional imperatives? My hypothesis is that the correct interpretation of the constitution is significant not because constitutional statutes make better policy but because all else being equal the sequence of judicial interpretations tends to approach the constitutionally correct interpretation. The underlying metaphor is of the correct interpretation representing a constant force acting, like gravity, on the statute's interpretation, and, also like gravity, the force increases as the interpretation enters the correct interpretation's neighborhood.

This interpretive improvement takes place both by assimilation and accommodation. The accommodative version is straightforward. The law moves progressively closer to the correct interpretation. In the assimilative convergence, other laws are interpreted based on the (initially wrong) interpretation, so that what was legally wrong becomes right, as law establishes coherence with (initial) error, creating new masses counteracting the original gravitation pull.

Brown v. Board of Education illustrates by containing divergent possibilities. After Plessey v. Ferguson, separate but equal became entrenched throughout the law, and the segregationist interpretation of the 14th amendment became more legally right with time, not less right, like a "Living Constitutionalist" might say. The interpretation yet remained inferior to the plain-meaning interpretation: separate is not equal because separate means different with respect to spatial disposition, and equal means the same in every respect. When an interpretation really is true by plain meaning, almost nothing can overcome it. So when there intervened other circumstances — such as international revulsion at American racism — seizing on the integrationist interpretation was easy, even though court unanimity allowed only a superficial empirical argument, rather than a broadly applicable (and more correct) plain-meaning one.

Correct interpretations should exert an attractive force that actual law approaches at the limit, but the question of degree can't be resolved at so general level of argument. The degree of interpretive pull the correct view exerts depends partly on the push of the correct method: will judges converge on a version of textualism? We now turn to why the U.S. Constitution is textualist.

5.3 Lessons from the civil law

(Third in The interpretation of statutes and the denial of judges' power series.)

American doctrine of government division is based on two theories: separation of powers and checks and balances. Often presented as complementary, the two contain tensions, even contradictions, for government branches can check each other only by exercising alien functions. The executive checks the legislature partly by encroaching on legislative terrain with the veto power. Congress checks the executive by disapproving appropriations for executive functions, intruding on their exercise. Congress checks the judiciary by over-ruling judicial interpretations by writing new laws re-interpreting old ones. The executive checks the judiciary because its discretion in execution contains more than a modicum of interpretation.

The courts interpret and construe the law to check and balance both the legislature and the executive. The U.S. Constitutional system envisions the courts an active participant in the tripartite division of power. A judiciary rigorously limited to applying the law wouldn't satisfy the constitution's basic requirements, as wouldn't an executive limited to ministerial acts. American constitutionalism here conflicts with democratic ideology: the reason American judges are both respected and reviled. This conflict between American constitutionalism and democracy provides the final analogy for understanding what purposivism and textualism imply about a functioning government, before we look at the conflict itself more directly.

We seek the consequences of this intra-ideological conflict by taking a natural experiment where legislative supremacy is uncontradicted by checking or balancing: the civil-law systems of France, Italy, and Germany. The civil-law's version of separation of powers arose as doctrine after the French Revolution vacated all encroachments on the legislature's exclusive right to legislate. The civil codes aspired to certainty and completeness; interpretation was to be avoided, but, if necessary, the courts were supposed to ask the legislature for guidance. Interpretation, alas, was the norm; despite best efforts, the cases arising are seldom anticipated when legislation is passed. The civil law developed institutions where the courts shamefacedly interpreted the law and unofficially even established precedents. A typical civil code contains instructions to interpret the law based on text and legislative intent; if uncertainties remain, by the overall system of government; and, as last resort, how the judge would decide the matter acting as the legislator.

The civil-law system originated under mandate to strip judges of all real power. Even today, civilian systems view judges as bureaucrats subordinate to the legislature. What powers of interpretation accrued to judges at civil law resulted not from their influence nor the connivance of ruling ideology but the foremost practical necessity, workload reduction. A self-interpreting law is unwritable; the civil law conceded on judicial interpretation, but the civilian system has no imperative to balance legislative power. The original French civil-law system approached the thought experiment at this series' start, subjecting the courts to present legislative purposes. When the system evolved as needs of state expanded, the courts remained under mandate to obey legislative intent, and the courts in civilian countries consult legislative history freely. The civil-law system, unambivalently committed to legislative supremacy, evolved a purposivist approach to statutory interpretation.

Next, what the American system of checks and balances means for statutory interpretation.

5.2 “Faithful servant” through an employment-law lens

(Second in The interpretation of statutes and the denial of judges' power series.)

In the preceding entry I extrapolated purposivism to show it stands for more responsiveness to the legislature, textualism, less. The next analogy shows that purposivism conceives of a relationship more like an employee (Servant) relationship, whereas textualists create a relationship between courts and Congress like that between an employer (Buyer) and independent contractor (Contractor). The parallel suggests conclusions about the relations between courts and Congress each doctrine envisions.

By Servant relationship I will mean the status of an employee at will, the status enjoyed (literally, not) by the great majority of American workers. An employment-at-will relationship exists whenever an express employment contract doesn't, creating a status allowing Servant's discharge "for good reason, bad reason, or no reason at all." As the "at-will" formula implies, Master expects Servant will work his will. Having the power to demand Servant do as Master wishes, even if this seems to require reading Master's mind, Master wants to realize his actual purposes, even if they contradict what he inscribes or verbalizes. Master gives Servant orders as means to ends, and, while purposes are subject to sublimation, the substitution of a wish's expressed misdescription for the wish itself undermines its fulfillment. If Master tells Servant to take out the garbage, Master doesn't expect Servant, Jonathan, to arrange a date with Master's competitor, Jacqueline, whom Master, in a competitive rage, had yesterday defined as "garbage." For the employer to delight in obedience to his words when they contradict his will would be perverse when generalized. Master may yet fire a Servant who goes too far beyond Master's words, even when Servant satisfies Master's wishes. Master wants to avoid the risks attending a speculating Servant, so Master will impose a more textualist regime on Servant when Master distrusts Servant's judgment. Master's "textualism" never comes close to wanting Servant to ignore Master's purposes.

The relationship between agent, text, and the principal's purpose differs when Contractor accepts a job. Buyer pays Contractor to satisfy a narrow intention expressed in a contract, often written, its interpretation textualist. Contractor doesn't have to gratify the wishes of Buyer; he need only satisfy the contract's terms. Why then does an employer choose to be Buyer? In the prototype situation, the employer lacks the specialized knowledge to supervise a Servant, to whom he would anyway have to grant the autonomy of a Contractor. The Buyer - Contractor relationship is tailored to high employee autonomy because it compensates employer for reduced control by shifting various duties to Contractor. A homeowner can sue a building contractor but not a Servant for misfeasance, and third parties can sue the homeowner as Master, when they cannot sue homeowner Buyer. The pattern shows that the employer prefers the Master-Servant relationship because employer charges for forgoing it by requiring Buyer to assume duties formerly employer's.

A textualist court stands to the legislature like Contractor to Buyer, the text of the statute replacing the job-contract's terms. This is a more powerful position than occupied by a purposivist court, which mimics a Servant by making the legislature Master.

5.1 Contradictions of the American judiciary

Since a powerful life-appointed federal judiciary ill accords with democratic ideology, American judges have always understated their own power. (Eskridge & Frickey, Statutory Interpretation as Practical Reasoning (1990) 42 Stan. L. Rev. 321, 324 ["counter-majoritarian anxiety"].) Ideology mismatches reality so badly it drives the interpretive school that would most enhance judicial power to portray the school's proposals as Congress's liberation from judicial fetters. These textualists propose that the judiciary should become Congress's "faithful servant" by ignoring Congress's purposes. (Marmor, The Immorality of Textualism (2005) 38 Loy. L.A. L. Rev. 2063, 65.)

Purposivists and textualists agree that the meaning of legislation is set when enacted, but logically the convention is optional. (For definitions, see Eskridge & Frickey, Statutory Interpretation as Practical Reasoning, supra, 42 Stan. L. Rev. at p. 324.) What Congress intended years ago when it passed certain laws isn't transparently pivotal to determining real legislative purpose, only the purpose of enacting the particular legislation. True, a legislature has power to enact legislation only if it can count on the courts enforcing its intent as of the enactment date. The reliable-enforcement precondition for the legislature's authority rebuts using preceding indicators of legislative opinion to contradict the legislature's resolve; it doesn't rebut using indicators of Congress's subsequently changed views to revise how the courts understand legislation previously enacted. This envisioned system takes purposivism to limit by focusing on the legislature's present views and purposes and disregarding an enactment's incongruence with legislative purposes formed after enactment, creating a far more purposivist system than Justices Marshall, Brennan, or Stevens would consider advocating: whenever a significant change occurs in the outlook of legislators, the Congressional Record records it, and the courts must adjust their legal interpretations. The scheme forces courts to track the current legislative stance on the law. If the legislature had defined "discrimination" for the purposes of the Civil Rights Act as distinct procedures favoring nonminorities, and election of new legislators or other developments caused the legislators to decide that "discrimination" in that statutory context is better defined as different outcomes for nonminorities, as soon as Congress publishes the record, the courts must follow.

Since this is only a thought experiment to depict a judiciary more completely the legislature's servant, other arguments against the relationship envisioned—notice and fairness to individuals—can be cabined as distractions. One argument against making the courts ultraresponsive to the legislature—the notice issue—is that citizens lack sufficient notice when the legal meanings fluctuate. We have long accepted that citizens look to legal professionals to interpret the law, but when some unnoticed Congressional activity causes the law to change, even the most informed attorneys might not register the changes affecting their clients. Another impracticality is properly insulating the courts legislative pressure applying the law equitably to different persons. I assume only for the sake of the thought experiment these objections can be met.

If you take care to avoid distraction by notice and fairness issues, you might agree constructing this extreme case helps show that ultrapurposivism is ultrademocratic; hence, ordinary purposivism is more democratic and legislative supremacist than textualism. Textualists get away with their claims because the narrow difference between extant purposivism and textualism doesn't make the real contrast immediately obvious. Extreme purposivism shows that if the legislature is truly supreme and the judiciary its servant, the judiciary serves according to the legislature's will, not the terms of its enactments.

Next in series: More arguments purposivists act more like servants of the legislature than do textualists

5. The interpretation of statutes and the denial of judges' power

A SERIES on statutory interpretation as formal mechanism of power. The series culminates in a theory of statutory and constitutional interpretation.

4.1. Gratuitously paying judges biases them: Caperton, Sturgeon, Fine

Three recent cases,—Caperton v. A.T. Massey Coal Co. (U.S. Supreme Court) , Sturgeon v. County of Los Angeles (California Court of Appeal), and Judge Yaffe's ideologically related finding Richard Fine in contempt (Los Angeles County Superior Court) (see http://tinyurl.com/cwf7cj)—highlight biases caused by financial contribution to judges. Caperton brought indignation about a judge's refusal to recuse himself despite receiving a $3 million contribution from a litigant, but the response to Sturgeon/Fine has mostly ranged from ambivalent to indifferent, although the Sturgeon/Fine issues also involve huge contributions to judges. Compared to the $3 million in Caperton, Sturgeon involves much less or much more, depending on how you count $40,000 per year per judge for an expenditure of $21 million each year.

How to explain the different popular reactions to Caperton and Sturgeon/Fine? Sturgeon/Fine isn't lacking in drama, as Fine today (as far as I know) remains locked in jail for contempt in defying a jurisdictionless county-money taker. One difference in Sturgeon/Fine compared to Caperton is the limited freedom contributor County enjoys to adjust incentives to outcome. County is limited in all the ways State is—no decreases in pay during a judge's term and measures must apply to the entire judiciary—suggesting the bias is neither a new kind nor a potent variant. But judicial disinterest in County's contributions only follows from calculating the judges' biasing interest based on County's strategic power over individual judges, a calculation assuming away the universal human tendency to pursue collective interests defined by salient shared outcomes. Amount of influence depends on the influencer's freedom to vary the incentive but isn't limited to individual calibration. If State pays judges a market-equilibrium salary, State has little freedom to vary judges' pay because change means State loses too. If County pays judges above equilibrium price, then County can—beneficially—economize.

On this model, whether County biases judges by paying them depends on whether it pays them more than they're worth. Such matters of fact must be decided to resolve issues of bias; this decisional necessity argues for treating biased civil-judicial performance as actionable tort rather than due-process violation.

4. Biased judges — For elections & personal lawsuits

Uncontroversially, judicial bias violates due process. What is the measure: actual bias, the probability of bias, or the appearance of bias? The debate on the U.S. Supreme Court case Caperton v. A.T. Massey Coal Co. (see http://tinyurl.com/djyezy) focuses on appearance by default, not cogency. Justice Stevens seems convinced the appearance of bias denies a party due process, but surely it deprives a party only of the appearance of due process. Appearance of bias concerns actual due process only as evidence of actual bias. Caperton's attorney Ted Olson argues bias is present according to the perception of the informed reasonable man. But if the evidence for bias rationally convinces, then the preponderance of evidence supports actual bias. 

Why does Attorney Olson convolute his argument by introducing the reasonable man's opinions? Olson's circumlocution allows him to show the mandatory respect for judges by not accusing any of them of bias without conclusive evidence.

Olson probably didn't intend to recommend finding probability of bias in the individual case, and, when referring to the reasonable person acquainted with all the facts, he didn't mean literally all of them. The facts that the reasonable person is to judge from are probably a small subset of all facts: just those facts bearing on the biasing event. In Caperton v. Massey, "all the facts" means the campaign contribution, who gave it, the circumstances of its gift and receipt. Very different from "all" facts, the difference showing that the rational man is envisioned approving a standard instead of a specific case outcome. There lies the problem: the question of the standard for bias remains unanswered because of the question's incoherence. Whether a biasing event actually changed a judge's vote admits no general answer. The "rational man" would be some other kind of man if he consented to determine whether a biasing event is (in general) "large enough" to change a decision. Even the 3-million dollar contributor in Caperton v. Massey didn't necessarily envision that the judge would show personal loyalty during his twelve-year term of office. More likely, the contribution elected a candidate who votes the contributor's way because the candidate's judicial and political views conform the law to the contributor's interests. The contributor's ability to control outcome ideologically isn't termed "judicial bias."

The reversible-error rule's workings contrast with the proposed mandatory-recusal rule, highlighting the latter's infirmity. To decide whether error is reversible, the appellate court puts itself in the place of the finder of fact and asks whether the error would cause a different outcome. The appellate court cannot, analogously, evaluate the effect of a bias because in the one they are assessing from the standpoint of a rational judge, in the other a biased judge. Rationality commands a unique judgment, but bias knows no generic magnitude.

Reactions to the bias question reflect ideology. Conservative justices see the impossibility of line drawing as an absolute barrier to intervention and cling to the unbiased-judge myth. Justice Scalia thinks even 3-million dollars lacks biasing power. Liberals, on the other hand, often propose eliminating elective judgeships. But direct election of judges only—beneficially—makes bias transparent. Appointment substitutes the appointing official—whose wishes are subject to the usual sources of political influence—for the campaign contributor. As framed by the liberals, the goal is avoiding impropriety's appearance, and appointment serves. Another liberal proposal, compulsory recusal based on large contributions—$1,500 proposed in California—may create more due-process problems than it solves. The proposal would perversely foster manipulation by contribution to adverse judges.

Assessing whether a judge is biased depends on, literally, all the various facts bearing on the judge's decision, including personal facts of the judge's correlated predispositions. Fact finding is outside the ordinary competence of the appellate courts. The trial courts are uniquely competent to deal with judicial bias for another reason: the outcome of a biased decision should be subject to recovery of damages, rather than reversal of the underlying case. 

Where the underlying prevailing party was only the passive beneficiary of bias, reversing the decision penalizes the wrong person; whether the judge was subject to extrinsic influence isn't the prevailing litigant's concern. Coping with judicial bias requires partly abrogating judicial immunity to allow personal suits against judges for biased decisions.

17.1. Societal implications of ego-depletion theory and construal-level theory repudiates elections for judges.

3. Rights, reinterpretation, and reform

Reconstructions of Constitutional rights are a popular academic topic, but reinterpreting the Constitution should be a disfavored reform strategy. Reconstruction is piecemeal, changes have holistic significance, and unexpected consequences are apt to defeat the reformers' aim. Consider the construction of the First Amendment's free-speech right and the hypothetical legal consequences of accepting Justice Hugo Black's superior First Amendment jurisprudence.

Our First Amendment jurisprudence bifurcates free-speech policy into preventing viewpoint discrimination and opportunity or volume constriction. The courts use, to a first approximation, strict scrutiny for discrimination by viewpoint and an intermediate level of scrutiny for time, place, and manner constraints. (See Stone, Content-Neutral Restrictions (1987) 54 U. Chi. L. Rev. 46.) Respected scholars advocate various analyses, which must limit First Amendment liberty because exercising “no restraint” literally would induce cacophony. (See, e.g., McDonald, Speech and distrust: Rethinking the content approach to protecting freedom of expression. (2006) 81 Notre Dame L. Rev. [advocating balancing test].) Justice Black's speech-versus-act approach can't, as he hoped, avoid construction, not for the sophistic reason that speech is action but rather because restraints on speech-related acts constrain associated speech. The vagueness subtracted from "speech" is added to the vagueness of "restrain." Just as one act is more or less speechlike than another, one measure is more restraintlike, but no objective metric or guidance prescribes a dichotomy. Yet, Black's approach is superior even it if doesn't achieve the hoped for constructionless textual interpretation. Black specifies the behavior the First Amendment protects as speech differently. On restricting seditious speech, for example, Black rejected any balancing test, even the clear and present danger test modified by the currently leading case, Brandenburg v. Ohio (1969) 395 U.S. 444. Black contended the law could suppress calls for unlawful antigovernment action only when immediately obeyed commands turned speech into the act of incitement. Although viewpoint neutrality and volume maximization don't formally conflict, Black's First Amendment jurisprudence emphasizes viewpoint neutrality protection at volume maximization's expense.

Sheer jurisprudential elegance favors Black, and strong arguments tell against the prevailing view. Where does the Constitution's text distinguish between intermediate and strict scrutiny? The test comes from an inference about intended policy, weighing viewpoint discrimination and volume constriction. Does the policy inference come from social practices contemporary with the Founders? Then we assume the Constitution capable only of enshrining social practices, rather than changing them. We may also have to assume that law authorizes whatever a majority of its proponents believe, instead of being limited to that portion of their beliefs they sought to codify. By comparison, Black's view escapes Occam's Razor by avoiding multiplication of a single right's aims. Black's interpretation also seems a stronger bar to oppression. Black's literal interpretation of "speech" minimizes the restraints applied further than Brandenburg v. Ohio, supra, and invalidates all defamation law and anti-obscenity laws. But this same concrete interpretation prevents giving speech the broad sweep of contemporary First Amendment jurisprudence in extending it to acts speechlike only in their communicative intent. While Black would sacrifice some decisions civil libertarians are fond of, explicitly verbal communication is still ideology's main vehicle, and suppressing speech based on viewpoint is historically the main motive for suppressing speech to obfuscate and deceive.

The motive for the volume-maximization policy is hard to understand on its own terms because volume maximization serves a different right. Speech restrictions most disadvantage those with fewest means. Intermediate scrutiny of nonideological speech constraints protects the expressive rights of citizens without means to circumvent time, place, and manner restrictions. Because the courts haven't used economic status to define any suspect class, the First Amendment's recentering without broadening the Fifth Amendment would delete Constitutional protection for accessible expressive outlets.

2.1. Practitioners' Notes on Invalidating the California Vexatious Litigant Statute

Only one federal case has considered California's vexatious litigant statute, Wolfe v. George (9th Cir. 2007) 486 F.3d 1120, a fatally flawed decision upholding the statute. The Wolfe court's error is demonstrable because it depends on a construction of California law at odds with the California Supreme Court. The 9th Circuit held:

When no bond is required, the California prefiling order does little more than require sua sponte review of a vexatious litigant's complaint to see whether it states a claim before imposing the burden of litigation on a defendant. The defendant could move to dismiss for the same reason, so the statute is not a substantial or irrational bar to access. (Id., at pp. 1126-7.)

The appellate panel didn't absorb enough California law to call the state's pre-answer procedure for a complaint's facial dismissal a demurrer. The panel's startling ignorance of state law, whose construction by California controls, distorted the panel's view of the scope the vexatious litigant statute confers on the summary procedure it authorizes. This misinterpretation of California law trivializes the vexatious-litigant statute's harm.The statute provides for an impromptu and sua sponte summary judgment, as was always clear and a California Supreme Court decision, a month before, had established:

[M]ay the trial court weigh the evidence presented on the motion, or must it assume the truth of plaintiffs alleged facts and determine only whether the claim is foreclosed as a matter of law? ¶ We conclude the trial court is permitted to weigh the evidence ... (Moran v. Murtaugh Miller Meyer & Nelson (2007) 40 Cal.4th 780.)

Litigants challenging the California vexatious litigant statute have invariably erred on basic appellate tactics. Usually they fail to isolate the statute's legal vulnerabilities, as opposed to the most morally salient features, Wolfgram's lead issue a notable exception. Wolfgram, nonetheless, mistakenly included every conceived issue. (See Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43.)

Some lines of attack on the statute promise success. Noting much frivolous litigation is not vexatious, the first theory is based on the argument that imposing penalties for merely frivolous filing, without proving wrongful motivation, fails to allow breathing space for the First Amendment. (Be&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.) The breathing-space argument depends, however, on the court's employing the strict scrutiny that a measure limiting access to the courts deserves. Another promising theory argues that the statute's method of measuring vexatiousness fails a rational-basis test. If a pro se plaintiff wins five cases in seven years, the single truly frivolous action initiated might attach the vexatious-litigant label. But winning five cases proves the litigation was meritorious, hence as a matter of law not vexatious or even frivolous, the decision procedure's irrationality amplified if the litigant filed only five lawsuits. (See De Long v. Hennessey (9th Cir. 1990) 912 F.2d 1144, 1148 [district court must address the content of the filings as indicia of frivolousness].)

2.0 Constraint on Right to Petition: For Invalidation of Vexatious-Litigant Statutes

Every public court system must deal with abusive-litigation problems. Regulating court access is a framework consideration because the right to be heard is fundamental to due process. (Molski v. Evergreen Dynasty Corp. (9th Cir. 2008) 521 F.3d 1215, 1216 (dis. opn. of Berzon, C. J.) ["pre-filing orders infringe the fundamental right to access the courts"].) Unconstitutional practices accompanied vilification of litigiousness.

California was first to pass a vexatious-litigant statute (Code Civ. Proc., § 391 et seq.) and to include provision for prefiling orders; Texas and Hawaii have passed laws modeled on California's. The California statute allows the court to uphold a motion labeling a pro-se litigant vexatious if the party filed five unsuccessful lawsuits in the past seven years and the current action is one for which no reasonable attorney would anticipate success. The "vexatious litigant" label, once applied, was effectively deemed permanent until Lucket v. Panos (2008) 161 Cal.App.4th 77. The unsuccessful lawsuits need not have been frivolous themselves, and successful lawsuits don't change the calculus.

California's vexatious-litigant statute is less rights-protective than the federal standard, which insists on crucial distinctions California ignores: vexatiousness can't be equated with litigiousness; low-probability cases aren't necessarily baseless; and litigation doesn't become sham — hence unprotected — without bad-faith motivation. (Professional Real Estate Investment Inc. v. Columbia Pictures Industries Inc. (1993) 508 U.S. 49.) The U.S. Supreme Court hasn't formally considered whether the full protection of the right to access the courts on which federal law insists derives from the U.S. Constitution. The High Court qualified Bill Johnson's Restaurants Inc. v. NLRB (1983) 461 U. S. 731, disavowing complete absence of First Amendment protection for frivolous litigation. Even unmeritorious filings must receive some protection to secure breathing room for the First Amendment. (Be&K Constr. Co. v. NLRB (2002) 536 U.S. 516, 531.) Dicta suggest that it is likely federal requirements apply to the states under the Fourteenth Amendment. (But see Wolfe v. George (9th Cir. 2007) 486 F.3d 1120.)

California appellate courts have been gentle with the vexatious-litigant statute despite the rift with federal courts, even as superior-court judges respect the right to court access by their reluctance to impose prefiling orders. The most sophisticated challenge to the vexatious litigation statute was denied by the California Court of Appeal in Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43. Wolfgram maintained that suits against the government could not count toward his five losses because petitioning the government was a basic constitutional right. Analogy to well-settled precedent favored Wolfgram, the Supreme Court having held that the government could not sue for malicious prosecution because it would chill the right to petition. (City of Long Beach v. Bozek (1982) 31 Cal.3d 527, 538-9 [Bozek].)

Since Bozek held the government could not penalize petitioning activity, plaintiff Wolfgram sustained his argument. The Court of Appeal panel, however, agreed with the dissent in Bozek that it had been wrongly decided, and the court evaded Bozek's logic by holding the prefiling order is not a penalty keeping the litigant out of court, not noticing that neither is the analogously treated damages award for malicious prosecution. The Ninth Circuit made the penalty's terms clear in Moy v. United States (9th Cir. 1990) 906 F.2d 467, 470:

Among all other citizens, he is to be restricted in his right of access to the courts. As far as he is concerned, his future filings run the risk of delay and even possible rejection before he can call upon defendants to respond to those filings. ... We cannot predict what harm might come to him as a result, and he should not be forced to predict it either. What he does know is that a Sword of Damocles hangs over his hopes for federal access for the foreseeable future.

The dissent in Bozek, supra, 31 Cal.3d at p. 539 (dis. opn. of Kaus, J.) argued that petitioning activity includes actions against private persons. The Bozek court's holding, then, proves too much, excluding all suits for malicious prosecution. The dissenting Bozek argument ignores the reasoning of the Bozek court was itself based on numerous precedents holding the government could not sue for defamation. (See Bozek, supra, 31 Cal.3d at p. 545.) If the government can't sue for false speech directed against it, the same principles dictate it can't penalize for sham litigation against it. The right to free speech and petition are equally fundamental First Amendment rights.

One usually unremarked consequence of the vexatious-litigation statute is the poisoning of the courts against parties labeled "vexatious litigants." The witchhunt against more litigious citizens frees judges to express their natural antipathy toward parties carrying the vexatious-litigant label. Such prejudice is also suffered by attorneys with State Bar discipline records — sometimes, for frivolous filings. Legislation targeting aggressive attorneys or litigious parties creates a partly disenfranchised class in a climate subjecting it to increasingly limited enjoyment of fundamental rights, a second tier to our huge class of disenfranchised felons.

1.0 Nonprecedential Opinions Impede the Law's Development

A. Reality

Since at least the 1980s but before Federal Rules of Appellate Procedure rule 32.1 became effective January 2007, federal circuits enforced a bizarre rule subjecting attorneys to monetary sanctions for citing unpublished local-circuit opinions. What was strangest about this common rule was its coexistence with rules allowing citation to unpublished opinions authored by other circuits. Why are the circuits so modest in estimating the relative worth of their own unpublished opinions, conferring less authority on them than opinions from other circuits, less authority than even a student’s law-review comment? Why would the courts go further than banishing these opinions from consideration, adding punishment for their mere mention, when striking a circuit's disowned progeny suffices? These unpublished opinions were disparaged more than were irrelevant facts or foundationless claims.

Judges, occasionally, have been candid enough to reveal why they are averse to citing their unpublished opinions: the judges are uncertain the unpublished opinions were correctly decided and embarrassed by possible contradictions with precedential cases. Judge Kozinski of the Ninth Circuit has become the main representative for the judiciary's view — that the nonprecedential opinions are merely less well articulated, resembling more a letter of explanation to the parties concerned than a rigorous and complete justification. (See Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155.) This “official” account doesn't help explain the judiciary's phobia of having these opinions cited in their home courts. The judiciary's official view ignores that the practice of treating opinions as precedential only when the court wants them so treated eliminates half the impetus to correct judgment. Lawyers understand stare decisis protects litigants by adding an additional constraint on the judge's discretion. But stare decisis provides another form of protection. Courts are constrained not only by having to conform their conclusions to what happened previously but by the knowledge that their conclusions control future cases.

B. Legality

Since the late Judge Richard Arnold wrote Anastasoff v. U.S. (8th Cir., 2000) 235 F.3d 154 [vacated for other reasons], declaring the practice of nonprecedential opinions violates Article III, section 2, of the U.S. Constitution, academics argue whether nonprecedential opinions are constitutional. Counterposed to Anastasoff is the 9th Circuit's rebuttal, Hart v. Massanari, supra, 266 F.3d 1155. The 8th Circuit panel concluded that the Founders had conceived of the judicial power as creating law with each appellate case. Judge Kozinski countered with scholarship showing that the practice of citing specific cases as precedent developed only after casebooks became available in the eighteenth and early nineteenth centuries, earlier courts having embraced a less articulated doctrine of decision according to existing law. Judge Kozinski's argument confuses a procedural history where stare decisis is invoked without citing any specific case with one where the court bans a case’s precedential use. Judge Kozinski also argues that if precedent were inherent in the Framers' concept of the judicial power, it would also apply to the trial courts, but an argument based on the denial of precedential significance to trial court judgments ignores juries’ centrality for the Framers. Arguments such as Judge Kozinski's lead even those sympathetic to Judge Arnold to criticize his scholarship for insufficiently specific evidence on the Founders' intent. (See, for example, Eighth Circuit Holds That Unpublished Opinions Must Be Accorded Precedential Effect (2001) 114 Harv. L. Rev. 940.) The criticism misconceives Arnold's argument, which is based on the original constitutional concept of judicial power, not the details of its execution. The basic question is what differentiates the judicial power from the legislative power under the U.S. Constitution, to which Judge Arnold replied the Framers conceived the distinction turning on stare decisis.

A similar argument, with the advantage of its not being subject to historical deflection, can be based on the Article III, section 2, cases and controversies clause. In making a case precedential, the court does not decide a case or controversy. Instead, it chooses among the resolutions which case will serve as precedent, its act of choice outside any case resolution. Probably the reason Judge Arnold didn't make this more constitutionally precise argument is that the courts do other things besides resolving cases and controversies, specifically, they establish rules for resolving cases and controversies. The 8^th Circuit’s analysis in terms of traditional judicial power incorporates the court's rulemaking power, whereas using the cases and controversies clause requires distinguishing among rules so that the nonpublication rule is a different kind than a page-limit rule.

The distinction between actions that do or do not abridge substantive rights is apropos but perhaps ad hoc in justifying an interpretation of a limitation to cases and controversies. (See Shannon, May Stare Decisis Be Abrogated by Rule? (2006) 67 Ohio State L.J. 645, 666 ["the primary purpose of such a rule is to limit the effect of a court's decisions (and therefore the extent and nature of the substantive law) in future cases"].) The cases and controversies clause, after all, has generally been used as a limitation on standing, not as a limit on the kinds of activities the court can engage. But if the practice of making some opinions nonprecedential conflicts with Article III, it conflicts because the court does something besides deciding a case. This argument from the cases and controversies clause requires that its proponents distinguish the rulemaking exceptions as constitutionally inert. The reader can compare the cogency of my argument that pure procedural matters fall outside the U.S. Constitution compared with Judge Arnold's that historical deviations from modern concepts of precedent are surplusage to basic stare-decisis doctrine. (But see Pather, Outing the Judicial Epistemology of Hart V. Massanari (2005) 62 Wash. & Lee L. Rev. 1553 ["The conclusion is that in Hart, Judge Kozinski is asking us to take a lot on trust, and that the record invites a decision against him"].)

C. Policy

In light of the judiciary’s opinions on a question where professional identity usually determines attitude, the constitutionality of nonprecedential opinions is not a live question. If almost all judges favor nonprecedential opinions, academics are even closer to unanimity in opposing them, and practicing attorneys, though speaking less with one voice, are strongly against them. Judges favor nonprecedential opinions because the courts invented this practice to handle the press of growing caseloads. But if the number of judges is insufficient, the most principled solution, as Judge Arnold pointed out in Anastasoff v. U.S., supra, is to create more judgeships. Barring that solution, the proper alternative is to give each case as much attention as it requires, and tolerate the consequent backlog. At the time, some analysts estimated that the number of federal circuits would have to be tripled for publishable opinion quality in each case. The number of cases had expanded because of an expansion of rights during the 1960s, legislatively as well as judicially created, and the number of judgeships didn't keep pace during the decades of economic retrenchment starting in the 1970s. The expansion occurred in two main areas: integration cases deriving from Brown v. Bd. of Educ. and prisoner rights cases under the Civil Rights Act. Evidence suggests that as early as the 1950s, the conservative Southern Fourth Circuit began creating a separate category of unpublished cases to resist Supreme Court initiatives. (See Pether, Inequitable Injunction: The Scandal of Private Judging in the U.S. Courts (2004) 56 Stan. L. Rev. 1435.) Later on, cases favoring socially privileged interests showed a more favorable outcome for those interests among the unpublished cases, suggesting that judges decided the legally ineffectual unpublished cases according to politics more than law. This bias, however, does not mean, as Penelope Pether implies (ibid.), that treating all cases as precedential would produce better results for the powerless, as other subterfuges might have the same discriminatory consequences.

How much accuracy judges lose by freeing themselves of accountability to future cases — not only where negligent or deliberate discrimination is involved —depends on circumstances. Where the potential penalty for failing to follow precedent is reversal, the main potential penalty for failing to create a workable rule is having the case overruled, a much rarer event than reversal, even before the advent of nonprecedential opinions. The lost dimension when courts abjure precedent concerns not quality of decision but quality of law, which results from considering a pool of cases eight or nine times larger, were all judgments treated as precedents. Commentators have characterized a system of nonprecedential opinions as amounting to moving from a common law to a civil law system, and the common law versus civil law framework can help establish a balance sheet for rules permitting nonprecedential judgments. In the civil law, codes rather than precedents determine outcomes, and the nonprecedent system resembles civil law — to be exact, the courts resemble the legislature running a civil-law system — in that the courts sacrifice their judicial law-creation function to perform a legislative function, creating law apart from any case or controversy.

There may be no general answer to whether the common law or civil law system is superior in its decisional output, but each system carries specific advantages. With competent, diligent, and honest judges, the civil law system is capable of delivering better decisions on issues of law. As Frederick Schauer shows in Precedent, a precedent-based system's decisions necessarily trade optimality for consistency to the extent precedent determines case outcome. (See Schauer, Precedent (1987) 39 Stan. L. Rev. 571.) Schauer doesn't recognize, however, that precedent also fosters accuracy when judging quality is further from ideal. Consistency and accuracy are sometimes cooperative outcomes, as a precedential standard leads to greater consistency because of its greater ease of application, achieved by reducing the factors the decider of fact considers. On their terms, precedents will be more correctly applied than law unsupplemented by precedent, and when the gap between optimum and achievement is great enough, the precedent system will prove superior. If the right way to think about the quality problem were conceiving the idealized judge — competent and conscientious —then a nonprecedent system would produce juster outcomes than a system with precedents appended to guide judgment. The appended precedents make the standard easier to apply by giving it an operational definition but harmfully limit a judge who doesn't need the operationalization.

An issue separate from the quality of decision given the same basic corpus of law is the quality of the standards themselves. Under a common law system, the law develops in response to each appellate case and benefits from resolving conflicts between courts through further appeal, whereas under a civil law system, the individual cases don't determine the law, which remains the same after a case is decided. Case by case, the civil law only assimilates the facts, never accommodating to them. Yet, the civil law does not stand apart from any dialectic of legal theory. While civilian judges don’t contribute to the civil law's evolution, "jurist" academics debate and revise the legal codes. The law must develop not only to keep up with the times but to evolve higher levels of fairness and effectiveness. The civil law's development isn't neglected but entrusted to esteemed academics instead of judges.

A regime of nonprecedential decisions jettisons the common-law mechanism of legal evolution. Judges decide among potential precedents which ones should be the real precedents not by deciding cases — that is, not by acting as judges —but by making generalized judgments that try to second-guess the law's optimal development—acting as bureaucrats or legislators. But they do this lacking the broad base of knowledge characteristic of a modern legislature and, most important in comparing to the civil law, lacking the advice of jurists, as common-law commentators play a minor role in drafting statutes and deciding precedential cases. The common law and civil law use different methods of evolving law; in civil law, conflict of ideas and legal artisanship are factored into the system at a different point, in a more philosophically rationalist fashion. Decisions without precedential effect in a common-law system cripple its main vehicle for the law's development without replacement by a civilian-style juristic alternative. The main toll of nonprecedential decisions, ignored by commentators, lies not as much in applying existing law poorly as retarding law's development.