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On Treating Unlike Cases Alike 6 - SCHAUER.DOCX (DO NOT DELETE) 10/6/18 10:56 AM ON TREATING UNLIKE CASES ALIKE SETTLED VERSUS RIGHT: A THEORY OF PRECEDENT. By Randy J. Kozel.1 Cambridge University Press. 2017. Pp. x + 180. $99.99 (hardcover), $34.99 (paper). Frederick Schauer2 Perhaps we should blame Aristotle. In his enduring discussion of justice in the Nicomachean Ethics, Aristotle offered the now-ubiquitous maxim that like cases should be treated alike.3 Yet despite the fact that a raft of scholars over the years have exposed the almost complete emptiness of the “treat like cases alike” maxim,4 the maxim persists,5 often blinding those who use it, or see it applied, to the way in which some substantive criterion 1. Professor of Law, Notre Dame Law School. 2. David and Mary Harrison Distinguished Professor of Law, University of Virginia. This paper was prepared for the symposium honoring and discussing Randy Kozel’s Settled Versus Right: A Theory of Precedent, held at the University of Richmond School of Law on April 20–21, 2018. 3. ARISTOTLE, ETHICA NICOMACHEA 5.1131a10–b15 (W. D. Ross trans., Oxford Univ. Press 1925) (c. 350 B.C.E.). See also ARISTOTLE, MAGNA MORALIA 1.1193b–1194b (W. D. Ross trans., Oxford Univ. Press 1925) (n.d.); ARISTOTLE, POLITICS, 3.1280a8–16, 1282b18–23 (Ernest Barker ed. & trans., Oxford Univ. Press 1946) (c. 350 B.C.E.); W. VON LEYDEN, ARISTOTLE ON EQUALITY AND JUSTICE: HIS POLITICAL ARGUMENT (1985). 4. E.g., LARRY ALEXANDER & EMILY SHERWIN, THE RULE OF RULES: MORALITY, RULES, AND THE DILEMMAS OF LAW 136–56 (2001); H. L. A. HART, THE CONCEPT OF LAW 159 (Penelope A. Bulloch et. al. eds., 3d ed. 2012) (1961); DAVID LYONS, On Formal Justice, in MORAL ASPECTS OF LEGAL THEORY: ESSAYS ON LAW, JUSTICE, AND POLITICAL RESPONSIBILITY 13 (1993); JOSEPH RAZ, THE MORALITY OF FREEDOM 239–44 (1986); Christopher J. Peters, Foolish Consistency: On Equality, Integrity, and Justice in Stare Decisis, 105 YALE L.J. 2031 (1996); Adam M. Samaha, Randomization in Adjudication, 51 WM. & MARY L. REV. 1 (2009); Peter Westen, The Empty Idea of Equality, 95 HARV. L. REV. 537 (1982); Kenneth I. Winston, On Treating Like Cases Alike, 62 CALIF. L. REV. 1 (1974); Ben Johnson & Richard Jordan, Should Like Cases be Decided Alike? A Formal Analysis of Four Theories of Justice (Feb. 21, 2018) https://ssrn.com/abstract=3127737. My own contributions to this literature are Frederick Schauer, Precedent, in THE ROUTLEDGE COMPANION TO PHILOSOPHY OF LAW 123 (Andrei Marmor ed., 2012); Frederick Schauer, Precedent, 39 STAN. L. REV. 571 (1987). 5. See, e.g., Marvin Ammori, First Amendment Architecture, 2012 WIS. L. REV. 1, 74 (2012); Joseph William Singer, Normative Methods for Lawyers, 56 UCLA L. REV. 899, 948 (2009). 437 6 - SCHAUER.DOCX (DO NOT DELETE) 10/6/18 10:56 AM 438 CONSTITUTIONAL COMMENTARY [Vol. 33:437 of likeness is necessary in order to make the maxim anything other than a largely useless tautology.6 Given that any two items in the world share some but not all of the properties of the respective items, any two items can be deemed alike in some respects and unalike in others, thus making the mere idea of likeness or unlikeness singularly unhelpful. Despite the necessity of locating some criterion of similarity (and, conversely, of dissimilarity) in order to fill in this fundamental emptiness of the “treat like cases alike” maxim, the maxim has far too often served as one of the principal justifications for a regime of precedent,7 a regime in which decision-makers have an obligation to follow previous “like” decisions even if and when they find those decisions mistaken.8 But although there may be rare instances in which the question presented to a current court is genuinely identical to the question presented to the same court on some previous occasion,9 those instances are sufficiently rare as to make the “treat like cases alike” maxim an unsatisfactory basis for a norm or regime of precedential constraint. Rather, such a norm or regime is important when, in the interests of stability, predictability, decision-maker constraint, or, perhaps most importantly, systemic integrity or internal coherence, the norm (presumptively10) 6. See FREDERICK SCHAUER, PROFILES, PROBABILITIES, AND STEREOTYPES 199– 223 (2003). To the same effect, although more obliquely, are HANS KELSEN, Aristotle’s Doctrine of Justice, in WHAT IS JUSTICE? JUSTICE, LAW, AND POLITICS IN THE MIRROR OF SCIENCE 110–136 (1957), and RICHARD A. WASSERSTROM, THE JUDICIAL DECISION: TOWARD A THEORY OF LEGAL JUSTIFICATION 112–13 (1961). 7. See, e.g., RUPERT CROSS, PRECEDENT IN ENGLISH LAW 4 (3d ed., 1977); NEIL MACCORMICK, LEGAL REASONING AND LEGAL THEORY 73–99 (1978); Alfonso Ruiz Miguel, Equality Before the Law and Precedent, 10 RATIO JURIS 372 (1997). An important rejoinder is LYONS, supra note 4. 8. On the importance of understanding that a genuine argument from precedent is not dependent on the precedent-follower’s belief in the correctness of the precedent decision, see Kimble v. Marvel Entm’t, LLC, 135 S. Ct. 2401, 2409 (2015); WASSERSTROM, supra note 6, at 52. 9. See Causeway Med. Suite v. Ieyoub, 109 F.3d 1096, 1113 (5th Cir. 1997) (Garza, J., concurring) (regretting that he was compelled by a directly applicable precedent to make a decision he believed was “inimical to the Constitution”). 10. In theory, the force of a precedent might be conclusive, such that ignoring (or overturning) a precedent was simply impermissible. This may well have been English practice prior to 1966, when the view was that a court could not overrule or override even its own precedent—that was for Parliament to do, and not even for the court that had originally decided it. This understanding of the infinite weight of a precedent was changed with the famous 1966 Practice Statement (see CROSS, supra note 7, at 109–13; R. W. M. DIAS, JURISPRUDENCE 127 (5th ed., 1985)), and Great Britain has now joined the rest of the common law world in considering even plainly applicable precedents as presumptive 6 - SCHAUER.DOCX (DO NOT DELETE) 10/6/18 10:56 AM 2018] ON TREATING UNLIKE CASES ALIKE 439 requires decision-makers to ignore even relevant differences, and thus to treat unlike cases alike. Or so I will suggest here, and in doing so I will be using Randy Kozel’s important justification for a precedential regime as the platform for my analysis. I. In defending the desirability of a regime of stare decisis— horizontal precedent11—for the Supreme Court of the United States, Kozel offers an account that is generally more normative than descriptive.12 As a matter of empirical description, strong precedential constraint has rarely characterized Supreme Court decision-making.13 Saul Brenner and Harold Spaeth’s wonderfully titled Stare Indecisis14 captures well the conclusion of and not absolute. Nevertheless, if the presumptivity of a precedent does not require that there be better reasons for overriding, ignoring, or overruling a precedent than there would have been for reaching a different result in the first instance, then the precedential force of a presumptive precedent disappears. See FREDERICK SCHAUER, PLAYING BY THE RULES: A PHILOSOPHICAL EXAMINATION OF RULE-BASED DECISION-MAKING IN LAW AND IN LIFE 181–87 (1991); WASSERSTROM, supra note 6, at 52–53. 11. On the distinction between vertical precedent (the obligation of judges to follow the decisions of those above them in the judicial hierarchy) and horizontal precedent (or stare decisis), and the obligation of judges to follow the previous decisions of their own court, even when that court is now populated by different judges, see FREDERICK SCHAUER, THINKING LIKE A LAWYER: A NEW INTRODUCTION TO LEGAL REASONING 36–41 (2009) [hereinafter, SCHAUER, THINKING]; Larry Alexander, Constrained By Precedent, 63 S. CAL. L. REV. 1 (1989). 12. Kozel describes Chapter 1 of his book as, in part, “descriptive” (p. 7), but Chapter 1 is in reality a description of the history, theory, and doctrine of precedent. It is not a description of the extent to which that theory and doctrine actually influence judicial decisions. 13. Much of the empirical research is summarized in Frederick Schauer, Stare Decisis and the Selection Effect, in PRECEDENT IN THE UNITED STATES SUPREME COURT 121 (Christopher J. Peters ed., 2013) [hereinafter PRECEDENT IN THE UNITED STATES SUPREME COURT]; Frederick Schauer, Has Precedent Ever Really Mattered in the Supreme Court?, 24 GA. ST. U. L. REV. 381 (2007). 14. SAUL BRENNER & HAROLD J. SPAETH, STARE INDECISIS: THE ALTERATION OF PRECEDENT ON THE SUPREME COURT, 1946–1992 (1995). See also HAROLD J. SPAETH & JEFFREY A. SEGAL, MAJORITY RULE OR MINORITY WILL: ADHERENCE TO PRECEDENT ON THE U.S. SUPREME COURT (1999); Jeffrey A. Segal & Harold J. Spaeth, The Influence of Stare Decisis on the Votes of Supreme Court Justices, 40 AM. J. POL. SCI. 971 (1996). The empirical literature on the role of precedent in the Supreme Court is large and growing. An important overview and analysis is THOMAS G. HANSFORD & JAMES F. SPRIGGS, THE POLITICS OF PRECEDENT IN THE U.S. SUPREME COURT (2006). See also the various contributions in PRECEDENT IN THE UNITED STATES SUPREME COURT, supra note 13. For more subtle analyses of the role played by precedent, especially in courts other than the Supreme Court of the United States, see RICHARD A. POSNER, HOW JUDGES THINK 43–51 (2008); Frank Cross, Appellate Court Adherence to Precedent, 2 J. EMPIRICAL LEGAL STUD. 369 (2005); Stefanie A. Lindquist & Frank B. Cross, Empirically Testing 6 - SCHAUER.DOCX (DO NOT DELETE) 10/6/18 10:56 AM 440 CONSTITUTIONAL COMMENTARY [Vol. 33:437 most empirical studies of Supreme Court decision-making—that although the Court’s opinions are replete with alleged reliance on earlier decisions, and although most of the Justices most of the time purport to be constrained by precedent in reaching their conclusions,15 in fact stare decisis only rarely constrains and only rarely explains Supreme Court outcomes, whether for the Court as a whole or for individual Justices.16 There are, of course, exceptions to this generalization.
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