Friday, February 14, 2014

To Say What The Law Is

The NBA starts its all-star break today. The U.S. Supreme Court is on break as well, and it too is right at the midpoint of the season. The Term has already been quite active on the civil procedure and federal courts front, with decisions on personal jurisdiction, Younger abstention, transfer of venue, the Class Action Fairness Act, and appellate jurisdiction. And there’s more on the horizon:

Why do we pay so much attention to these cases? For most court-watchers, it’s not because there is a strong interest in whether a Massachusetts gravel supply company underpaid its benefit fund obligations. Rather, it’s because of what the Supreme Court’s decisions mean going forward. Because of stare decisis, judicial decisions can prospectively bind future courts just as an Act of Congress or a Federal Rule of Civil Procedure can. In many areas of procedure, Supreme Court decisions may be the most significant lawmaking acts we’re going to see.

With that in mind, I thought I would share a link to my recent article, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, 99 Virginia L. Rev. 1737 (2013). The article was driven in part by the struggle to figure out the precedential effect of controversial Supreme Court decisions like Wal-Mart and Iqbal. But I try to tackle more generally the question of what parts of a judicial decision should actually create binding law, and in what way. Here’s the abstract: 

Judicial decisions do more than resolve disputes. They are also crucial sources of prospective law, because stare decisis obligates future courts to follow those decisions. Yet there remains tremendous uncertainty about how we identify a judicial decision’s lawmaking content. Does stare decisis require future courts to follow the rules stated in a precedent-setting opinion? Or must future courts merely reconcile their decisions with the ultimate result of the precedent-setting case? Although it is widely assumed that a rule-based approach puts greater constraints on future courts, two recent Supreme Court decisions — Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal — turn this conventional wisdom on its head. In both cases, what the Court said about the governing rules was not inherently controversial, and would leave courts with considerable flexibility going forward. But what the Court did in applying those rules — the ultimate results in Wal-Mart and Iqbal — could be very destabilizing if stare decisis mandates consistency with those results in future cases.

This article assesses competing approaches to stare decisis, and argues that the lawmaking content of a judicial decision should be only the rules that the court states in deciding the case. While the end result may be instructive, enlightening, or valuable for any number of reasons, it should not create binding obligations on future courts as a matter of stare decisis. A rules-only approach is an unconventional position (even those who favor rule-based stare decisis typically presume that consistency with results is also required). But it strikes the optimal balance. To infer binding obligations from results alone creates a risk that — as with Wal-Mart and Iqbal — future courts will be forced to intuit more radical legal changes than the precedent-setting court actually embraced. Put simply, a judicial decision should create binding law only to the extent that it says what the law is. Unless and until new legal rules are declared (whether by the judiciary in later cases or by legislation), courts should be free to operate within the existing legal framework, without being required to reconcile their decisions with the mere results of earlier ones.

Thanks again to the editors at the Virginia Law Review, who did a fantastic job on the article, and to the many colleagues who gave me such terrific feedback and suggestions.

Adam Steinman, Federal Courts, Recent Scholarship, Supreme Court Cases, Twombly/Iqbal | Permalink


It seems that Twombly and Iqbal may have their limitations, in which case a representative of collective actions may be able to survive a defendant's 12(b)(6) motion to dismiss when "[d]efendants' arguments are more directed toward whether a class or collective action should be certified here, rather than whether plaintiffs' claims are facially sufficient, and would be better considered in that context." While the mechanism has not been pressed to the Supreme's, it does seem that the following cases may shed some light on an important procedural stage (or bridge the gap), and offer plaintiff's an alternative approach to the pleading strategy that takes place during collective actions in order to survive the devastating full-court press of of Twombly and Iqbal, which have been until recently, difficult to overcome during collective actions. See Peck v. Hillside Children's Center, 915 F. Supp. 2d 435 - Dist. Court, WD New York 2013 (,29), LAGASSE v. FLEXTRONICS AMERICA, LLC, Dist. Court, D. Rhode Island 2012, Bogdon v. Newmont USA Ltd., No. 3:11-cv-00317-LDG, 2011 WL 6253151 at *3 (D. Nev. Dec. 2, 2011) (denying Rule 12(b)(6) motion where plaintiff alleged sufficient facts to "plausibly infer" he was similarly situated with proposed collective action members but leaving further factual scrutiny to the conditional certification phase); and Sanchez v. Haltz Constr., Inc., No. 09 C 7531, 2012 WL 13514 at *4 (N.D. Ill. Jan. 4, 2012) (same).

Posted by: Brian&Meg | Feb 17, 2014 11:29:55 PM

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