Academic journal article Notre Dame Law Review

Transtemporal Separation of Powers in the Law of Precedent

Academic journal article Notre Dame Law Review

Transtemporal Separation of Powers in the Law of Precedent

Article excerpt


Judicial power consists of "jurisdiction," the authority to speak (dictio) the law (ius). (1) As Chief Justice Marshall articulated the judge's role, it is "the province and duty of the judicial department to say what the law is." (2) In defining the judiciary's "province," Marshall metaphorically staked out a territory in which courts may govern. Within that territory, courts speak the law with authority, resolving disputes and binding other actors.

The metaphor of a judicial "province" carries with it the implication of boundaries to the judge's authority. Courts may speak the law authoritatively only within limits fixed by the Constitution and other legal constraints. Two borders have historically proved especially important in defining judicial power. First, courts may not issue rulings on their own initiative. (3) They address legal issues only in the course of resolving cases brought to them by others. (4) Second, in resolving litigated disputes, courts may only properly speak the "law," (5) employing sources and modes of reasoning recognized as "legal." Judges lack the freedom of legislators to pursue unguided policy preferences. (6)

The power of courts to "say what the law is" must be harmonized with the legitimate law-speaking powers of other governmental actors. After all, one might just as properly say that it is "the province and duty of the [legislative] department" to "say what the law is," though at a higher level of generality than courts. (7) The "executive department" can similarly be thought to speak the law when it issues regulations or resolves administrative proceedings. (8)

Structural provisions of the Constitution and separation of powers principles allocate the law-speaking power among legislators, courts, and executive officials. Congress may enact legislation, provided it follows Article I procedures. (9) However, courts or executive agencies generally must apply the statute to particular disputes. The prohibition on legislative vetoes bars Congress from case-by-case application of a statute unless it satisfies the demanding constitutional process for passing new legislation. (10) At the same time, the authority of judicial and executive officials to speak the law in resolving statutory disputes can be superseded if Congress amends the underlying statute. (11)

Even in the unique context of constitutional law, care must be exercised to discern the sometimes subtle boundaries between legitimate law speaking by judges and other governmental actors. The "political question" doctrine, for instance, recognizes that some constitutional questions lie outside the judicial province, falling within the domain of the political branches. (12) More controversially, "departmentalists" would accord some level of autonomy in constitutional interpretation to executive and legislative officials, even on issues previously addressed by the courts. (13)

This Article considers the law of precedent, including the doctrine of stare decisis, the distinction between holding and dictum, and associated principles governing the extent to which judicial resolution of a legal issue binds later courts. The analysis begins with an observation: rules of precedent serve as a mechanism for allocating the power to proclaim the law. Here the concern is not distribution of power among branches of the federal government. Rather, the law of precedent allocates power among courts of the past, present, and future. Stare decisis and subsidiary principles regulate the extent to which judges can explicate legal rules in a way that resolves not only the case before the court, but also later cases involving litigants and facts as yet unknown. (14) The law of precedent, then, involves a transtemporal application of separation of powers principles, allocating power among judges serving at different points in time. (15)

The rule of stare decisis treats precedent as a constraint on successor judges. …

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