Academic journal article Albany Law Review

Musings on Stare Decisis in New York's Court of Last Resort

Academic journal article Albany Law Review

Musings on Stare Decisis in New York's Court of Last Resort

Article excerpt

My thanks to The Fund for Modern Courts and The Albany Law School for inviting me to deliver the 2018 Hugh R. Jones Memorial Lecture and for hosting this event. My acquaintance with Judge Jones derives from his writings and Chief Judge Judith Kaye's storytelling. Both portray a consummate judicial craftsman, blessed with a knack for the memorable turn of phrase--a powerful talent for a judge to possess--and dedicated to the best interests of the Court of Appeals and the clarity and stability of New York law.

Many judges have reflected on the craft and philosophy of appellate judging, but none more eloquently and astutely than Judge Jones in the Benjamin N. Cardozo Lecture that he delivered at the New York City Bar in 1979, entitled Cogitations on Appellate Decision-Making. (1) This lecture, required reading for new Judges of the New York Court of Appeals, predates the major statutory revision of the Court's jurisdiction in 1986, which created a predominantly certiorari court. (2) As a result, part of Cogitations is now outdated. Judge Jones's key messages still ring true, though; in particular, his discussion of practical and substantive considerations bearing on when to dissent, or, more precisely, how the best interests of the Court and the law often cut against the individual judge's personal interest or ego in dissenting. (3)

And although their time on the bench overlapped for less than a year and a half, Judge Kaye often talked about Judge Jones, always with evident admiration and affection. (4) My favorite of Judge Kaye's stories brings home Judge Jones's facility as a writer and his devotion above all to the Court of Appeals and its mission. Judge Kaye recounted leaving on Friday at the end of a session early on in her tenure with at least five assigned majority writings, only to be greeted the following Monday or Tuesday with an exquisitely written dissent from Judge Jones directed at one of her far-from-complete, yet-todoe circulated draft opinions for the Court. Judge Jones's dissent, Judge Kaye soon realized, was intended to sharpen her analysis with an eye toward improving the quality of her majority opinion. He later withdrew the dissent; its salutary purpose having been accomplished. And this was not a one-off event in aid of a rookie judge. In Cogitations, Judge Jones extols the practice of preparing internal dissents to strengthen the majority opinion, the work product of the Court as an institution. (5) Having begun with this brief appreciation of Judge Jones's judicial personality, I now turn my attention to stare decisis.

[T]he questions of a judge's relationship to the past in the form of
prior decisions, to the present in the form of the case at hand, and to
the future in the form of the effect that [an] opinion will have as
precedent are almost daily grist for the judge of a reviewing court. (6)

Why and whether stare decisis constrains decision making in a court of last resort is an intriguing and epic topic and the subject of this lecture, which focuses on the treatment of precedent at the New York Court of Appeals. (7) And I use the word "constrain" deliberately. After all, stare decisis is superfluous if a judge in the present agrees that a prior decision--the precedent--was rightly decided. Put another way:

[I]f the fact that a court considers one of its previous decisions to
be incorrect is a sufficient ground for overruling it, then stare
decisis is out the window, because no doctrine of deference to
precedent is needed to induce a court to follow the precedents that it
agrees with; a court has no incentive to overrule them even if it is
completely free to do so. (8)


[S]tare decisis 'imparts authority to a decision... merely by virtue of
the authority of the rendering court and independently of the quality
of its reasoning. The essence of stare decisis is that the mere
existence of certain decisions becomes a reason for adhering to their
holdings in subsequent cases. … 
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