SMU Law Review

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Speak to enough lawyers (especially litigators) about their experiences grappling with binding appellate case law in their jurisdictions, and a significant number of them will complain about statements in appellate case law that patently contradict prior precedent, incorrectly articulate legal standards, or otherwise mangle the doctrine in an area. The image of courts as deliberative doctrine-producing machines ignores the reality that certain statements in judicial opinions might not have been carefully, deliberately constructed. Often, the result is harmless. But in some instances, doubt about the deliberateness of dubious doctrinal statements in judicial opinions can become an unavoidable problem for litigants and judges in future cases. Conventional lawyering tools—distinguishing cases factually or characterizing statements as dicta—are ill-suited to address language in judicial opinions that sets out generalizable doctrine (rather than fact-bound conclusions about a particular case) that is central to the court’s analysis and yet difficult or impossible to square with logic or with preexisting statements of the same doctrine.

The uncomfortable truth is that judges with enormous dockets can make drafting mistakes in articulating doctrine—not merely judicial “error” in the sense of issuing a decision that would be reversed—and can even do so in crucial portions of their opinions. It is, of course, usually impossible to know for sure whether some or all of those seeming misstatements were secretly deliberate. To be sure, it is an appellate court’s prerogative to state the law in the manner of its choosing. But it is also eminently reasonable to presume, absent evidence to the contrary, that judges usually do not intend to create doctrinal contradictions within their jurisdictions without explanation. This Article explores the circumstances under which the best explanation for an apparent misstatement of doctrine is simply that it was uttered indeliberately as a result of insufficiently careful drafting.

This Article then addresses whether indeliberate doctrinal misstatements in appellate precedent should enjoy the stare decisis effect that appellate decisions typically receive. A wide range of considerations—normative, pragmatic, and ethical—are relevant to that question. Top of mind among those considerations is recent criticism of stare decisis, including from members of the Supreme Court, based purely on disagreement with the conclusions the precedent reached.

Next, in lieu of focusing on my own view of how best to balance the competing considerations, I explore empirically whether American lawyers as a whole have developed norms in this domain. Conventional wisdom might be that, absent the ability to distinguish a case or characterize a statement as dicta, the statements of appellate courts are strictly binding within their jurisdictions—and, at a minimum, that lawyers must bring all relevant binding appellate court doctrine to the attention of the judges deciding their cases. Based on my empirical research, however, the true picture is more complicated. This Article presents results from a nationwide study of practicing lawyers, showing that a substantial minority of lawyers feel no ethical obligation to raise an appellate court’s patently mistaken statements of doctrine, even when not dicta, and an even larger percentage of lawyers feel that lower courts should not follow such doctrinal misstatements. More broadly, it finds little consensus on these issues; in many portions of the study, the lawyers’ responses did not differ significantly from a 50/50 split. That is, despite all the norms that are supposedly instilled in the legal profession, lawyers often show no significant tendency one way or the other on these questions—either to follow appellate doctrinal misstatements or to disregard them. That result is consequential not merely because lawyers’ presentation of issues to their clients and to courts shapes outcomes, but also because nearly all American judges were formerly practicing lawyers themselves.

Finally, I briefly reflect on why, in light of the study’s results and the normative, pragmatic, and ethical considerations discussed, lawyers and judges should become more comfortable identifying and disregarding doctrinal misstatements and legal educators should prepare their students to confront them.

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