My new book is about much more than a legal doctrine

Zena_CrenshawLogal · Unread post Fri Sep 07, 2012 1:39 pm

My new book, Exploring the Vitality of Stare Decisis in America, is the debut report for “The Matthew Fogg Symposia On The Vitality Of Stare Decisis In America.” That we use Latin to describe the concept suggests it is complex, mysterious, and beyond the cares of most Americans. Yet stare decisis, sometimes called the "doctrine of precedent", arguably preserves what is among their most valued treasures, the legitimacy of America’s judiciary. Presumably our administration of justice remains stable, predictable, efficient, and welfare-enhancing by requiring courts to follow earlier resolutions of cases with comparable facts, circumstances, and/or law known as precedent.

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Unread post Fri Sep 07, 2012 5:05 pm

For the sake of discussion, and possibly as a motivator to BookTalk.org members to buy and read your book/report, what would you say about this doctrine of precedent? Would answering this be a spoiler or are you comfortable telling us whether you're for or against Stare Decisis? Is there a better way to establish and maintain a fair judicial system in the US?

Zena_CrenshawLogal · Unread post Fri Sep 07, 2012 6:10 pm

Hi Chris:

Thank you for your inquiry.

Fogg symposia panelists are asked to consider whether compliance with stare decisis is reasonably assured in America given certain prescribed factors. We are not close to considering all relevant, sensible views which is why Exploring the Vitality of Stare Decisis in America (EVSDA) should be the first of a book series. But this is what I had to say to Fogg's debut symposium audience and set out in EVSDA:

(Groups I help administer) represent a certain group of legal system users – litigants; plaintiffs and defendants; complainants and respondents. The tie binding us is what we see as a lack of predictability and efficiency in our encounters with America’s legal system when stability, predictability, efficiency, and welfare-enhancement should be the byproduct of stare decisis; appropriate adherence to precedent.

Groups like NFOJA and POPULAR exist because of arguable departures from precedent and inefficiency that not only offend stare decisis, but suggest a systemic malfunction of America’s legal system. Of course these are troubling perceptions often attributed to misunderstandings of law and the proper function of courts. So attention turns to the nature and quality of civics education, legal training, professional experience, intelligence, reputation, mental health . . . . These traits or factors impact the weight and credibility of legal system and judicial critiques. Yet a simple test confirms the proper functioning or may suggest a major malfunction of American courts.

We can simply consider whether the outcome of any legal case resolved in the U.S. is fair, given the fair and impartial administration of justice as the proper function of our judiciary. That’s right, a common sense notion of fairness is the basic litmus test for determining whether America’s judiciary, hence our legal system and courts function properly. And voila, the playing field is leveled for our analysis of stare decisis. Common sense qualifies us to participate as we’ll be making assessments largely based on common sense notions of fairness.

I went on to attest, “I’ve been a full time judicial reform advocate since 1998, working on a national basis since 2003, and in the process I interact with countless numbers of people across the U.S. who are in or trying to survive court proceedings that just don’t seem fair.”

A law professor who reviewed my book says:

Zena Crenshaw-Logal’s book, Exploring the Vitality of Stare Decisis in America, usefully brings together a number of strands of thought explored at the 2011 Matthew Fogg Symposium . . . Such paradoxes abound in this area, and the book brings them to the fore. Would formal oversight of judges and judicial decisions by informed members of the public help reduce politicization of the judiciary, reduce incompetence, and eliminate bias? Should lawyers and the media enjoy more legal protection in criticizing judges? Or do these approaches constitute a threat to judicial independence, understood as requiring job security for judges who make unpopular, misunderstood (but legally correct) decisions? . . . These debates rage on — and the Matthew Fogg Symposium so well-described in Crenshaw-Logal’s book promises to continue to make valuable contributions to it, by bringing together a unique group of interested and informed constituencies.

Hopefully I'm providing adequate food-for-thought. In any event, feel free to contact me with any questions or comments.

Zena

Interbane · Unread post Fri Sep 07, 2012 8:27 pm

Zena wrote:The tie binding us is what we see as a lack of predictability and efficiency in our encounters with America’s legal system when stability, predictability, efficiency, and welfare-enhancement should be the byproduct of stare decisis; appropriate adherence to precedent.

Do some interpret the "appropriate adherence to precedent" to mean "rigid adherence to precedent?" If not, then how is 'appropriate' defined? Or is the conceptual definition of Stare Decisis more complex than I'm assuming? It would seem wise to define the means by the end. If it results in stability, predictability, efficiency, and welfare-enhancement, then it is appropriate. Right?

Would formal oversight of judges and judicial decisions by informed members of the public help reduce politicization of the judiciary, reduce incompetence, and eliminate bias?

I've often entertained the idea that there should be some sort of official internet "forum" where college professors(or some body of the informed public) would make official statements about legislation and policy. Directed more at the legislative and executive branches than the judicial. Or have an official thread dedicated to specific measures or policies, and the whitelisted members having a discussion.

Zena_CrenshawLogal · Unread post Sat Sep 08, 2012 2:27 pm

Hello Interbane:

I imagine that some people interpret the 'appropriate adherence to precedent' to mean 'rigid adherence to precedent', especially if doing so suits their purpose. But my book builds on this premise borrowed from a 2001 law review article:

(I)n (America,) stare decisis is generally understood to mean that precedent is presumptively binding. In other words, courts cannot depart from previous decisions simply because they disagree with them. However, they can disregard precedent if they offer some special justification for doing so.

I haven't read his article, but a panelist for Fogg's 2012 symposium seems to share your "define the means by the end" approach to stare decisis. He (i.e. Professor Colin Starger of Univ. of Baltimore School of Law) expounds on "formal and justificatory stare decisis approaches", proposing that "justificatory stare decisis" facilitates expansion of criminal due process.

Interbane, the internet forum you've contemplated would be "(d)irected more at the legislative and executive branches than the judicial". My book suggests that America's judiciary needs similar scrutiny for reasons, it seems, most people have not contemplated. I anticipate that my next book will tackle those reasons even more directly.

My new book is about much more than a legal doctrine

My new book is about much more than a legal doctrine

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Re: My new book is about much more than a legal doctrine

Re: My new book is about much more than a legal doctrine

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