Florida State University Law Review Volume 36 Issue 2 Article 1 2009 Case Intepretation Shawn J. Bayern [email protected] Follow this and additional works at: https://ir.law.fsu.edu/lr Part of the Law Commons Recommended Citation Shawn J. Bayern, Case Intepretation, 36 Fla. St. U. L. Rev. (2009) . https://ir.law.fsu.edu/lr/vol36/iss2/1 This Article is brought to you for free and open access by Scholarship Repository. It has been accepted for inclusion in Florida State University Law Review by an authorized editor of Scholarship Repository. For more information, please contact [email protected]. FLORIDA STATE UNIVERSITY LAW REVIEW CASE INTERPRETATION Shawn J. Bayern VOLUME 36 WINTER 2009 NUMBER 2 Recommended citation: Shawn J. Bayern, Case Interpretation, 36 FLA. ST. U. L. REV. 126 (2009). CASE INTERPRETATION SHAWN J. BAYERN* ABSTRACT This Article develops an approach to constructing the meaning of prior court cases that is more helpful than formalistic, conventional distinctions between concepts like “holdings” and “dicta.” Instead of trying to classify judicial announcements into fixed categories, courts should engage in a broader interpretive inquiry when confronting prior cases. Determining what a judicial opinion stands for requires determining the intent that motivated the opinion, as carefully un- derstood in light of the factual and argumentative context that gave rise to it. Under this view of precedent, binding common law arises in large part from principles explicated after considering facts. Viewing precedent in this way indicates a generally unrecognized danger from fact-unbound precedents—that is, legal rulings by courts that cannot sensibly be tied to the facts of particular cases. Such unbound prece- dents arise chiefly in the context of statutory interpretation. This Ar- ticle suggests several solutions to this problem, including a statutory- interpretation-avoidance maxim and a novel proposal that courts should not consider themselves obliged in all cases to answer the legal questions that underlie parties’ disputes. I. INTRODUCTION .................................................................................................. 126 II. PRECEDENT AS CONSTRUCTION OF INTENT ....................................................... 128 A. Alternate Interpretive Approaches ............................................................. 128 1. Minimalism ......................................................................................... 128 2. Result-Orientation ............................................................................... 131 3. Judicial Announcements of the Law ................................................... 132 B. Precedent as Interpretation ........................................................................ 132 1. The Role of Interpretation .................................................................... 132 2. A Continuum of Authority ................................................................... 138 C. A Plausible View ........................................................................................ 143 D. Normative Considerations ......................................................................... 146 1. Judicial Restraint and the Separation of Powers ............................... 147 (a) Power and Dicta ............................................................................ 147 (b) Constitutional Limitations ............................................................ 151 2. Foresight and Care .............................................................................. 155 3. Judicial Economy and Generativity .................................................... 160 (a) Management of Lower Courts ....................................................... 160 (b) Generation of Rules ....................................................................... 163 4. Clarity, Honesty, and Administrability ............................................... 164 * Visiting Assistant Professor of Law, Duke Law School; BS, Yale University; JD, UC Berkeley School of Law (Boalt Hall). I am grateful to George Christie, Martin Golding, Tara Grove, Harris Hartz, Augustine Kim, Sapna Kumar, Jeff Powell, Jed Purdy, Jesse So- lomon, Will Trachman, and Zephyr Teachout for helpful comments. 126 FLORIDA STATE UNIVERSITY LAW REVIEW [Vol. 36:125 III. FACT-BOUND AND FACT-UNBOUND PRECEDENTS ............................................. 167 A. The Importance of Facts in the Common Law ........................................... 168 1. Fact-Bound Expansion and Narrowing of Judicial Announcements . 168 2. Facts and Statutory Interpretation...................................................... 169 B. Reducing the Impact of Fact-Unbound Precedents .................................... 171 1. A Maxim to Avoid Unnecessary Statutory Interpretation (in Fact- Unbound Cases) ................................................................................... 171 2. A Refusal to Decide Questions of Law ................................................. 172 IV. CONCLUSION ..................................................................................................... 174 I. INTRODUCTION A feature of court opinions is so obvious that it is rarely stated: opinions are textual documents, and like statutes and contracts, they have a purpose and a particular factual context. Determining what a court opinion means—that is, what law it helps create—is essentially a matter of case interpretation, analogous in many ways to statutory interpretation or contract interpretation. Courts and commentators have developed terminology and concepts like “holding” and “dictum” that guide our interpretation of judicial documents. But like many concepts, these guidelines can obscure the problem at hand if they are followed too formalistically. Fundamentally, a court’s endeavor in interpreting cases is broader than this terminology and the sur- rounding doctrines suggest. Others have recognized this,1 but for whatever reasons the recognition always fades, and more formalist views come again to limit both our understanding of prior cases and our imagination about what options courts have in deciding new ones. This Article explores several issues related to case interpretation. It first sets out to develop a simple, though in some ways novel, theory of precedent that serves as a better guide to interpreting cases than do the still-conventional notions of holding, dictum, and ratio decidendi. In short, cases should be taken to stand for what they were intended to stand for, as carefully interpreted in view of the knowledge that they were produced in a limited factual and argu- mentative context. Just like statutes, contracts, and other written documents that have legal effects, opinions have an intent, and de- termining the meaning of a case requires a determination of this in- tent. Under the view I set out, a statement in an opinion is not nec- essarily or exclusively either holding or dictum; any statement can serve as precedent for future cases given the right factual and argu- mentative context. To put this differently, courts are not formally or 1. See, e.g., MELVIN ARON EISENBERG, THE NATURE OF THE COMMON LAW 52-55 (1988); KARL N. LLEWELLYN, THE COMMON LAW TRADITION: DECIDING APPEALS 103 (1996) (“[A] ruling no longer needs the credentials of a ‘holding’ in order to be available for unqua- lified reliance and use.”). 2009] CASE INTERPRETATION 127 practically limited to classifying a statement as holding or dictum in the abstract. Having developed this view of precedent, this Article next consid- ers several questions in its light. Most significantly, it attempts to show that there are common but widely unperceived dangers not from dicta but from fact-unbound precedents—that is, judicial an- nouncements of legal decisions that have little to do with the factual context that gave rise to them. This is a danger even if the pro- nouncement was a “holding” or was logically necessary to resolve a question that was before a court. Some classes of issues, including many ordinary questions of statutory interpretation, lend themselves to this sort of fact-unbound decision. This Article describes the dan- ger of fact-unbound decisions and sets forth a few potential solutions. Some of these solutions may seem like radical changes to the way courts function; for instance, I believe courts appropriately have less of a duty than they think they do to provide definitive resolutions to legal questions that the parties before them have raised. But, there are also some relatively mundane solutions that will go a long way to reduce the generation and impact of bad law. Part II spells out my view of precedent and contrasts it with al- ternative views. Note that I am not aiming to address questions con- cerning the appropriate strength of precedent—for instance, when courts should overrule it or what the precise relationship between higher courts and lower courts should be.2 I also do not mean to sug- gest that courts are limited to the intent of prior cases in developing law. Instead, my goal is to describe how courts should, and for the most part do, interpret prior court opinions and figure out what they stand for.3 This activity is much broader and less formalistic than those trained to look for holdings and dicta tend to imagine. 2. I do, however, think that it makes sense to talk of precedent even though it can be overruled. Edward Levi appears to have disagreed. See EDWARD H. LEVI, AN INTRODUCTION TO LEGAL REASONING 2 (1949) (“Where