Young Lawyers Section Report Payton C. Bentley

Payton C. Bentley is the Chair of the Young Lawyers Section. He is an attorney at the Clark Law Firm, PLLC.

Since the last update, YLS’ hopes of in-person events has come to a halt with the increase in COVID-19 numbers. YLS, however, has remained steadfast and active!

On August 18th, I spoke on behalf of YLS at the 1L orientation at the University of Arkansas at Fayetteville School of Law, welcoming the new 1Ls to the profession. I provided advice on professionalism in school and the community as representatives of the legal profession and finding a group of peers to help cope with the stresses of law school. I also discussed the many benefits of being a student member of the Arkansas Bar Association.

On September 30th, I had the honor of recording a brief video at a local recording studio in Fayetteville, Crisp Recording Studios, that covers the many benefits of being a member of the Association. I also spoke about my experiences on the Legislation Committee and the vital role our Association plays in advocating and advancing the practice of law. More below! This video will be sent to the new members of the Association and the new admittees who recently passed the bar exam.

The YLS’ Executive Council met on October 4th to begin discussing some options for safe outdoor in-person social events and options for a virtual event for the Mid-Year Meeting. YLS is in the process of updating the Domestic Violence Handbook under the leadership of Alexandra Benton. YLS is also forming a committee to update the Local Practice Guidebook that provides information on judges, trial court administrators, and clerks for every county in Arkansas. This committee will be co-chaired by Ezra Smith and Elizabeth Richardson.

Make sure to keep an eye on the YLS Facebook page and the YLS ACE Community for future updates!

One of the most important functions of our Association in representing our profession comes in the form of legislative advocacy. The painstaking work the Association puts into legislative advocacy is frequently overlooked and unrecognized. Before I got involved, I had no idea what the Association does for our profession related to legislative advocacy. Now, as a member of the Legislation Committee, I have witnessed the hours on hours of hard work the Association puts in to advocate and advance the practice of law.

The Committee reviews every single bill that is filed during the legislative session to identify bills that have an impact on the practice of law or the administration of justice. The Committee meets every Friday during the legislative session to discuss and debate the identified bills and constitutional amendments that impact the practice of law. We then report to the various sections the bills and constitutional amendments that impact their practice area to obtain more information on the subject matter or input on the position the Association should take. This feedback from our members is essential for the Association to be able to advocate on behalf of all our members. We use this information and feedback from the sections to have more vigorous debates and entertain motions to support, oppose, remain neutral, or take no position on the identified bills and constitutional amendments.

The position the Committee takes on the identified bills is communicated to the bill sponsor or the legislature in general through the Association’s lobbyist, Jay Robbins. The Association is truly fortunate to have Jay Robbins as our lobbyist. His expertise and ability to communicate on behalf of the Association is invaluable to the Association. The Association will frequently also have a member representative attend legislative sessions on certain bills to testify to the Association’s position.

Under the Association’s bylaws, the position the Committee takes on constitutional amendments is reported to the Board of Trustees, which then has the authority to override the Committee’s position. The ultimate position of the Association on constitutional amendments is likewise communicated to the amendment sponsor or the legislature in general by Jay Robbins. A member representative typically will attend the legislative session on the amendment to testify to the Association’s position.

Lastly, a priority of the Association is to advance our own proposed legislation to improve the legal system in Arkansas through our legislative package that is advocated by Jay Robbins to find legislators to sponsor and support our bills. The 2020-2021 legislative package included bills for Non-Candidate Expenditure, Uniform Limited Liability Company Act, Uniform Fiduciary Income and Principal Act, Uniform Civil Remedies for Unauthorized Disclosure of Intimate Images Act, and Power of Attorney Technical Corrections. All the 2020-2021 legislative package, except the Non-Candidate Expenditure bill, passed through the legislature and is now law. This is a great accomplishment for the Association. A special thanks is owed to our members who worked tirelessly on drafting and revising these bills, and of course to our Lobbyist, Jay Robbins.

Involvement in the Association and in the various sections allows you to provide a voice on proposed legislation that impacts your practice and is key for the Association to be able to represent all our Members! ■

By Justice Robin F. Wynne and Caroline Boch

Justice Robin F. Wynne was in private practice in Fordyce for more than 30 years before his election to the Arkansas Court of Appeals and then the Arkansas Supreme Court.

Caroline R. Boch is a law clerk to Justice Robin F. Wynne of the Arkansas Supreme Court.

The Supreme Court has 19 committees and commissions which are the “hands and feet” of our court. They assist our court’s superintending authority mandated by Amendment 80. These committees have as few as five members to as many as 30 or more. The extensive work that these volunteer lawyers and nonlawyers do provides valuable rules, procedure, and practice for our court system.

Each of the seven justices on the Supreme Court is assigned as liaison to these various committees. I have the pleasure of serving as liaison to the Arkansas Access to Justice Commission, the Client Security Fund Committee, and the Committee on the Unauthorized Practice of Law. Assuming these duties as liaison has given me the opportunity to work with some wonderful lawyers and nonlawyers as well.

The Supreme Court created the Committee on the Unauthorized Practice of Law in 1978 to address all “complaints of and matters or inquiries dealing with the unauthorized practice of law.”1 The committee is currently composed of nine members—four lawyers and five nonlawyers, and two alternates. When I became the committee’s liaison in 2015, there were several hundred pending cases dating back to 2011. With the hard work of the committee, we have extinguished the backlog and are current with the pending complaints. This has been accomplished through the diligent efforts of the committee, chaired by attorney Phillip Stone of El Dorado and assisted by Charlene Fleetwood, Senior Staff Attorney in the Office of the Committee on Professional Conduct. Other committee members include attorneys William A. Waddell, Jr., of Little Rock, J.T. Skinner of Batesville, and Kathryn Elizabeth Platt of Fayetteville, and the nonlawyer members include Gary E. Mueller of Little Rock, Natasha Murray of White Hall, Deana Osment of Jonesboro, and Faye Shepherd of Conway. My law clerk Caroline Boch attends all committee meetings on the court’s behalf.

Complaints come to the committee from all corners of the state. We receive complaints from attorneys, judges, and nonlawyers. Each complaint is scrutinized before any action is taken. In most cases it is easy to determine if someone is practicing law without a license, but then there are those “close calls” that the committee must make as to whether there is a violation. Defining what constitutes the unauthorized practice of law can be more difficult than one would think. There is no one definition that fits all circumstances, and this is where the wisdom and real-world experience of the committee is most valuable. This is a frequently asked question of the committee—What is the “practice of law” in Arkansas? The committee provides these two answers: •When a person appears before a court of record for the purposes of transacting business with the court in connection with pending litigation or when a person seeks

to invoke the processes of the court in any matter pending before it, the person is engaging in the practice of law.2 •The practice of law includes any services of a legal nature rendered outside of courts and unrelated to matters pending in the courts, including conveyances, the preparation of legal instruments of all kinds, and, in general, all advice to clients and all action taken for them in matters connected with the law.3

One case may be disposed of with a short deliberation while another may take several meetings before the action of the committee can be determined. Not only is the committee very thorough but extremely thoughtful as well. Further information about the committee can be found on the Arkansas Judiciary website, including the complaint form in both English and Spanish; FAQ in English, Spanish, and Marshallese; rules; procedures; and actions of the committee.4

Our court system is only as good as those who are dedicated to making it better. The members of this committee are great examples of how our judiciary works and its concern for the citizens of Arkansas and the Arkansas Bar. The work of the UPL committee is outstanding and I applaud the committee for its tireless efforts and dedication to protect the public from those individuals who attempt to practice law without a license and create a risk of harm.

The UPL committee’s dedication to improving Arkansas’ UPL enforcement system is evident in its recent efforts to modernize the structure of the committee and the rules governing its work. With the exception of an immunity provision added in 2017, the rules had not been revised since 1994. According to committee chair Phillip Stone, “We kept noticing that the current rules did not address everything we were facing, and we would hear that previous committees had handled things in a particular way. We wanted to codify our processes and practices for ourselves and future committees.” Mr. Stone also noted that the committee “knew that the rules were dated and that other states had already updated rules to deal with a number of the issues we were facing.”

In 2019, with funding from the Supreme Court, a consultation team from the American Bar Association traveled to Arkansas and met with committee members and staff. The ABA consultation team issued a report in early 2020 recommending changes to the committee rules and structure. In addition, two committee members and Ms. Fleetwood of the OPC staff attended the American Bar Association’s UPL School, where they learned about best practices from UPL committees in other jurisdictions as well as challenges facing the UPL enforcement system nationwide.

Committee structure is one of those challenges. In response to the decision of the United States Supreme Court in NC Dental Examiners Board v. Federal Trade Commission5 and the Federal Trade Commission’s guidance document of the same year entitled FTC Staff Guidance on Active Supervision of State Regulatory Boards Controlled by Market Participants, 6 UPL committees around the United States began to consider changes to committee structures to lessen or eliminate control by market participant lawyers. However, elimination of a majority of market participants is not a panacea, and the application of the state action defense to antitrust liability recognized by the FTC and courts is dependent upon active state supervision of a UPL committee’s work. The Arkansas committee members realized that adherence to set standards established by a state body such as the Arkansas Supreme Court and not the subjective decision of the market participants is not only the correct legal response to criticism of UPL committees’ work by nonlawyers, but it is also the fairer way to address UPL issues within the rule of law. Therefore, the UPL rule revisions consider the issues raised by the FTC and applicable court rulings to: (1) eliminate the majority of market participant lawyers making decisions but preserving the necessary and desirable role of lawyers’ input into decisions; (2) emphasize rules of procedure that meet basic requirements of due process and provide standards for reaching a decision; and (3) provide relief to an aggrieved person by a right of appeal.

Based on the recommendations of the ABA report and the best practices learned at the UPL School, the UPL committee developed several proposed revisions to the UPL rules. On May 27, 2021, the Supreme Court issued a per curiam revising the rules.7

The rule changes standardize the procedures the committee follows in responding to complaints alleging the unauthorized practice of law, with the goal of increasing fairness and efficiency. As Mr. Stone explained, “The changes define what the committee is to do at each stage of the process. From my perspective, the biggest change is to state our processes more clearly and to allow for a right of further review when a person accused of the unauthorized practice of law disagrees with the committee’s decision.”

First, the new rules formalize the complaint investigation process, which had not been described in the prior rules. Under the new rules, after a complaint is received, committee members vote whether they believe probable cause exists to conduct an

investigation.8 If the committee votes to open an investigation, committee staff investigates the allegations and provides a report to the committee within sixty days if practicable.9

Under the new rules, the committee may decide to hold formal proceedings if it determines that such proceedings would help it determine whether the respondent engaged in the unauthorized practice of law.10 The new rules outline procedures for formal proceedings, which the committee had not previously adopted. Under these procedures, the committee must provide written notice to the respondent.11 At the hearing, the respondent may be accompanied by counsel and may present documentary evidence, testify, present witness testimony, and cross-examine witnesses.12 Following the hearing, the committee may prepare written findings of fact—applying a preponderance of the evidence standard—and conclusions of law in support of its final disposition of the matter.13

What are the possible dispositions? The new rules formally describe the actions the committee may take in response to complaints that someone is practicing law without a license. The committee may close the matter if it finds no evidence of the unauthorized practice of law.14 If the respondent agrees to cease and desist from actions which appear to constitute the unauthorized practice of law, the committee may close the matter by formal agreement.15 If the committee finds that the respondent engaged in activities that could be considered the unauthorized practice of law but did so indirectly and unintentionally, the committee may issue a warning letter to the respondent.16 If, however, the committee finds that the respondent intentionally engaged in such activities, the committee may issue a letter of caution to the respondent.17 Following formal proceedings, if the committee finds that the respondent engaged in activities that were a blatant and intentional violation of the prohibition against the unauthorized practice of law, the respondent has a history of such activity, or the activities pose a significant threat to the public, the committee may issue a cease and desist letter that requires the respondent to immediately stop the activities and enter into a consent agreement with the committee not to engage in the activities.18 The respondent has the right to appeal the committee’s decision to issue a cease and desist letter to the Pulaski County Circuit Court.19 If the respondent fails to stop the activities after a cease and desist letter is issued or fails to enter into a consent agreement with the committee, the committee has the right to seek an injunction and declaratory relief against the respondent in the Pulaski County Circuit Court.20 The committee can also institute an original proceeding seeking an injunction or declaratory relief in other circumstances if it believes such relief is warranted.21

In addition to formalizing procedures, the new rules modify the membership of the committee. The committee was expanded from seven to nine members, adding two nonlawyers to make nonlawyer members the majority of the committee.22 The inclusion of additional nonlawyer members lessens concerns about control by market participant lawyers, broadens the perspective of the committee, and furthers the committee’s mission to protect the public from the unauthorized practice of law. The new rules also provide for staggered terms for members, enhancing the continuity of the committee.

A few provisions, while not entirely new, are worth noting: •The committee has the power to authorize the Chair to subpoena, subject to Rule 45, the respondent, witnesses, and documents.23 •Any matter under investigation is to remain confidential until formal proceedings are initiated or until the matter is resolved.24 •No advisory opinion issued or action taken by the committee is to be construed as a court order.25 •The committee, its members, agents, and employees are immune from suit or action for their activities under the procedures to the full extent of judicial immunity in Arkansas.26

The new rules increase the efficiency and fairness of Arkansas’ UPL enforcement system by outlining uniform procedures and providing due process protections to respondents. They “will ensure fair process for the work of the current committee and future committees” and “place the committee at the forefront of UPL committees around the United States,” Mr. Stone said.

“This has been a hard-working committee that works together well,” Mr. Stone added. “We come from different backgrounds and different parts of the state, but we have been able to make a lot of progress toward public protection from the unauthorized practice of law while making lasting friendships along the way.”

1. Rule of Court Creating a Committee on the Unauthorized Practice of Law, 264 Ark. App’x 960 (1978) (per curiam). 2. https://www.arcourts.gov/courts/supremecourt/boards-committees/committeeunauthorized-practice-law/home/faq; Arkansas Bar Ass’n v. Union Nat’l Bank of Little Rock, 224 Ark. 48, 273 S.W.2d 408 (1954). 3. Id. 4. https://www.arcourts.gov/courts/supremecourt/boards-committees/committeeunauthorized-practice-law/home. 5. 574 U.S. 494 (2015). 6. https://www.ftc.gov/system/files/ attachments/competition-policy-guidance/ active_supervision_of_state_boards.pdf. 7. In re Amendments to Rules of Court Creating a Committee on the Unauthorized Practice of Law, 2021 Ark. 123 (per curiam). 8. Rule 10(A), Rules of Court Creating a Committee on the Unauthorized Practice of Law. 9. Rule 10(C). 10. Rule 10(D). 11. Rule 11(A). 12. Rule 11(E). 13. Rule 11(F). 14. Rule 12(A). 15. Rule 12(B). 16. Rule 12(C)(i). 17. Id. 18. Rule 12(C)(ii). 19. Id. 20. Rule 12(C)(iii). 21. Id. 22. Rule 1. 23. Rule 4. 24. Rule 9(B). 25. Rule 4. 26. Rule 15. ■

By Faye Shepherd

Having worked around courts my entire career, my assumption was that the unauthorized practice of law was flagrant and easy to recognize in a comical way like My Cousin Vinny. I expected that the perpetrators were either trying to save money by taking pro se litigation to a new level or fiendish shadowy scammers preying on unsuspecting victims – with no gray area between. When asked to serve on the Unauthorized Practice of Law (UPL) committee, I couldn’t even articulate to my husband what all that would entail but imagined it would involve checking boxes on a form: easy to recognize, black and white, tidy, open and shut. My operating supposition was that this committee was a means to protect the legal profession and their livelihoods. I also anticipated that as a nonlawyer, my role would be more or less as a silent token member, rubberstamping the attorneys’ estimations on the UPL cases.

The first UPL committee meeting I attended disabused me of ALL of the preconceived notions listed above. I was expected to be more than an observer. Sleeves up, I dug in. What became apparent was that each case had layers – some more than others – that required the UPL committee members to drill through the intricate strata looking for the intent of the respondent, which lines were crossed, how many times, for how long, and the impact or potential impact to the public. This process truly requires many sets of eyes working as a unitary body bringing different lenses, experiences, backgrounds, and fields of education with all opinions and questions valued working the assemblage’s way toward consensus.

After a few meetings, the discomfort I felt as a nonlawyer was replaced with a confidence that perhaps as a member, I could contribute in a meaningful way. My day job brings me into different judicial districts throughout the state. Because there is no centralized judiciary, every circuit judge who hears juvenile cases directs her/his staff the way s/he sees fit, or many times the juvenile officers continue to do things the way they have done them and the way they were done before they were hired. When some procedures are called into question, most will reply, “It’s always been done that way. I didn’t know there was anything wrong with it.” Most of those court staff adopt and adapt to standardized practice while other juvenile officers continue to indulge in outmoded or questionable practices. Framing the UPL cases this way helps me to answer the questions of intent, for how long, and whether it is affecting the court-involved youth, the judge, or the public. I am frequently accused of being “social worky,” and I plead guilty but trust that many try to help others altruistically. My background frequently supports an alternative frame regarding motivation for the unlicensed practice of law for some of the respondents.

Many UPL complaints lodged are undoubtedly citizens lacking access to justice and without means to retain an attorney. Of that number, plenty are immigrants with language barriers and limited understanding of roles of Notario Publicos vs. practicing attorneys. Others are incarcerated persons trying to help fellow inmates out by filing legal documents on their behalf. Still others are out-of-state attorneys who are offering or providing their services in Arkansas without being affiliated. The list goes on and so do the damages to the public, so investigating and intervening is important to limit some losses and prevent others. After serving on the UPL Committee for one full term and the beginning of another, I have come to believe that the general public deserves access to knowledge about what constitutes the Unlicensed Practice of Law and a path to legitimately meet their needs. A good start to this is in the developing UPL website: https://www.arcourts.gov/administration/ boards-committees/committeeunauthorized-practice-law/faq.

UPL committee members bring to the scheduled meetings diverse views and areas of expertise, but it would be inadequate to stop there and not consider what the members take from the committee to shape their practice or vocation. Serving on the committee has deepened my resolve to look further into many of the lingering questions in juvenile justice. How can court-involved youth and their families file for expungement? How can they challenge something that is incorrect on their record? A myriad of other issues that their probation officers cannot advise on. The meetings have given me another lens in which to see other aspects of courts, the processes, the need and the dire consequences when unsuspecting citizens trust unqualified opinions. ■

Faye Shepherd is the Juvenile Justice Specialist for the Arkansas Administrative Office of the Courts. Since 2015, Faye has been a nonlawyer member of the Arkansas Supreme Court’s Committee on the Unauthorized Practice of Law.

By William A. Waddell, Jr.

William A. Waddell, Jr., is a partner at Friday, Eldredge & Clark LLP in Little Rock. He is a member of the firm’s litigation practice group.

Lawyers depend upon the doctrine of stare decisis1 to do their work. Indeed, as Justice Holmes noted many years ago in “The Path of the Law,”2 stare decisis is to provide the predictability that lawyers need to advise their clients and that courts need to continue the orderly administration of the rule of law:

When we study law we are not studying a mystery but a well-known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or to advise them, is that in societies like ours the command of the public force is intrusted to the judges in certain cases, and the whole power of the state will be put forth, if necessary, to carry out their judgments and decrees. People want to know under what circumstances and how far they will run the risk of coming against what is so much stronger than themselves, and hence it becomes a business to find out when this danger is to be feared. The object of our study, then, is prediction, the prediction of the incidence of the public force through the instrumentality of the courts.3

There was a renewed focus on stare decisis in the United States Supreme Court’s cases decided in 2020 and 2021. The decisions discussed in this article are not only important indicators of why the underlying substantive issues were decided as they were, but they also provide insight into the future interpretation of these and other issues in the context of stare decisis.

In a sense, all cases are about stare decisis, because every court addresses how an issue in the case before it should be decided in the context of prior precedent. However, as the cases discussed herein demonstrate, the words stare decisis may signal that a justice is invoking the doctrine either to justify an opinion for which he may be criticized4 or to question the majority’s view.5 In some cases, the departure from stare decisis gets the point across without mentioning the doctrine, as Justice Sotomayor wrote in Americans for Prosperity

Foundation v. Bonta: “Today’s decision discards decades of First Amendment jurisprudence recognizing that reporting and disclosure requirements do not directly burden associational rights.”6 Thus, the cases discussed in this article raise the question whether the invocation of the doctrine affirms it as a bedrock of predictability or as the harbinger of shifting sands of change. When it is the latter, a lawyer’s senses are quickened, because the predictability aspect of her work is made more difficult.

In its cases decided in 2020 and 2021, justices of the Supreme Court discussed stare decisis in various contexts. For example, in Barr v. American Association of Political Consultants, Inc.7 the court issued a plurality holding in which the doctrine’s dimensions are questioned down to the footnotes. Nuanced concepts of stare decisis, such as factors for overruling previous precedents and the distinction between vertical and horizontal stare decisis, make their way into the lawyer’s predictability consciousness.8

Similarly, in Allen v. Cooper, 9 Justice Elana Kagan, writing for the majority, stated that stare decisis requires “a ‘special justification,’ over and above the belief ‘that the precedent was wrongly decided’” in order to reverse a decision.10 Evidencing a tension as to the core authority for overruling prior decisions, Justice Clarence Thomas, concurring, took exception.

I cannot join the Court’s discussion of stare decisis. The Court claims we need “‘special justification[s]’” to overrule precedent because error alone “cannot overcome stare decisis.” [Citation omitted] That approach “does not comport with our judicial duty under Article III.” [Citation omitted] If our decision in Florida Prepaid were demonstrably erroneous, the Court would be obligated to “correct the error, regardless of whether other factors support overruling the precedent.” [Citation omitted]11 Sotomayor questioned whether that conclusion still held in her dissent in Jones v. Mississippi:

How low this Court's respect for stare decisis has sunk. Not long ago, that doctrine was recognized as a pillar of the “‘rule of law,’” critical to “keep the scale of justice even and steady, and not liable to waver with every new judge's opinion.” Ramos, [citation omitted]. Given these weighty interests, the Court “usually require[d] that a party ask for overruling, or at least obtain[ed] briefing on the overruling question,” and then “carefully evaluate[d] the traditional stare decisis factors.” Barr v. American Assn. of Political Consultants, Inc. [citation omitted]. Now, it seems, the Court is willing to overrule precedent without even acknowledging it is doing so, much less providing any special justification. It is hard to see how that approach is “founded in the law rather than in the proclivities of individuals.” Ramos, [citation omitted].12

The most extensive discussion of stare decisis in 2020 is contained in Justice John Roberts’ concurring opinion in June Medical Services L. L. C. v. Russo. 13 Prefacing his decision to side with the majority in holding a Louisiana abortion law unconstitutional, Justice Roberts gave this detailed explanation of stare decisis:

Stare decisis (“to stand by things decided”) is the legal term for fidelity to precedent. Black’s Law Dictionary 1696 (11th ed. 2019). It has long been “an established rule to abide by former precedents, where the same points come again in litigation; as well to keep the scale of justice even and steady, and not liable to waver with every new judge’s opinion.” 1 W. Blackstone, Commentaries on the Laws of England 69 (1765). This principle is grounded in a basic humility that recognizes today’s legal issues are often not so different from the questions of yesterday and that we are not the first ones to try to answer them. Because the “private stock of reason ... in each man is small, ...

individuals would do better to avail themselves of the general bank and capital of nations and of ages.” 3 E. Burke, Reflections on the Revolution in France110 (1790).

Adherence to precedent is necessary to “avoid an arbitrary discretion in the courts.” The Federalist No. 78, p. 529 (J. Cooke ed. 1961) (A. Hamilton). The constraint of precedent distinguishes the judicial “method and philosophy from those of the political and legislative process.” Jackson, Decisional Law and Stare Decisis, 30 A. B. A. J. 334 (1944).

The doctrine also brings pragmatic benefits. Respect for precedent “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.” Payne v. Tennessee, … It is the “means by which we ensure that the law will not merely change erratically, but will develop in a principled and intelligible fashion.” Vasquez v. Hillery, ... In that way, “stare decisis is an old friend of the common lawyer.” Jackson, supra, ...

Stare decisis is not an “inexorable command.” Ramos v. Louisiana, ... But for precedent to mean anything, the doctrine must give way only to a rationale that goes beyond whether the case was decided correctly. The Court accordingly considers additional factors before overruling a precedent, such as its administrability, its fit with subsequent factual and legal developments, and the reliance interests that the precedent has engendered. See Janus v. State, County, and Municipal Employees, …

Stare decisis principles also determine how we handle a decision that itself departed from the cases that came before it. In those instances, “[r]emaining true to an ‘intrinsically sounder’ doctrine established in prior cases better serves the values of stare decisis than would following” the recent departure. Adarand Constructors, Inc. v. Peña, [citation omitted] (plurality opinion). Stare decisis is pragmatic and contextual, not “a mechanical formula of adherence to the latest decision.” Helvering v. Hallock, .... 14

With this background and to reconcile his vote in Russo with his vote on previous abortion cases, Justice Roberts concluded succinctly that “[s]tare decisis instructs us to treat like cases alike. The result in this case is controlled by our decision four years ago invalidating a nearly identical Texas law.”15 Dissenting justices criticized Justice Roberts’ application of the doctrine, but his open discussion of his vote based on stare decisis inspires a sense of predictability.

The concept of “fidelity to precedent” appeared in another way in the concurrence by Justice Kagan in Collins v. Yellen, 16 in which she also used the doctrine to explain her vote:

To ensure that our decisions reflect the “evenhanded” and “consistent development of legal principles,” not just shifts in the Court’s personnel, stare decisis demands something of Justices previously on the losing side. … They (meaning here, I) must fairly apply decisions to which they disagree. But fidelity to precedent also places demand on the winners. They must apply the Court’s precedents – limits and all – wherever they can, rather than widen them unnecessarily at the first opportunity.

In Ramos v. Louisiana, 17 another plurality decision, the court held that a Louisiana law allowing conviction by a non-unanimous jury was an unconstitutional denial of the Sixth Amendment right to a jury trial. Justice Gorsuch wrote for the majority, which overruled two prior precedents after applying principles of stare decisis. The jurisprudential history of the cases overruled is a revealing example of precedent leading to years of application of overruled decisions based on stare decisis:

How, despite these seemingly straightforward principles, have Louisiana’s and Oregon’s laws managed to hang on for so long? It turns out that the Sixth Amendment’s otherwise simple story took a strange turn in 1972. That year, the Court confronted these States’ unconventional schemes for the first time—in Apodaca v. Oregon and a companion case, Johnson v. Louisiana. Ultimately, the Court could do no more than issue a badly fractured set of opinions. Four dissenting Justices would not have hesitated to strike down the States’ laws, recognizing that the Sixth Amendment requires unanimity and that this guarantee is fully applicable against the States under the Fourteenth Amendment.

But a four-Justice plurality took a very different view of the Sixth Amendment. These Justices declared that the real question before them was whether unanimity serves an important “function” in “contemporary society.” Then, having reframed the question, the plurality wasted few words before concluding that unanimity’s costs outweigh its benefits in the modern era, so the Sixth Amendment should not stand in the way of Louisiana or Oregon.

The ninth Member of the Court adopted a position that was neither here nor there. On the one hand, Justice Powell agreed that, as a matter of “history and precedent, ... the Sixth Amendment requires a unanimous jury verdict to convict.” But, on the other hand, he argued that the Fourteenth Amendment does not render this guarantee against the federal government fully applicable against the States. In this way, Justice Powell doubled down on his belief in “dual-track” incorporation—the idea that a single right can mean two different things depending on whether it is being invoked against the federal or a state government.

Justice Powell acknowledged that his argument for dualtrack incorporation came “late in the day.” Late it was. The Court had already, nearly a decade earlier, “rejected the notion that the Fourteenth Amendment applies to the States only a ‘watered-down, subjective version of the individual guarantees of the Bill of Rights.’” It’s a point we’ve restated many times since, too, including as recently as last year. Still, Justice Powell frankly explained, he was

“unwillin[g]” to follow the Court's precedents. So he offered up the essential fifth vote to uphold Mr. Apodaca's conviction—if based only on a view of the Fourteenth Amendment that he knew was (and remains) foreclosed by precedent.18

Noting the role of Justice Powell as the ninth and deciding justice in the previous cases, Justice Gorsuch concluded:

Every occasion on which the Court is evenly split would present an opportunity for single Justices to overturn precedent to bind future majorities. Rather than advancing the goals of predictability and reliance lying behind the doctrine of stare decisis, such an approach would impair them.19

Justice Gorsuch was prescient, particularly as to the ability of a justice to affect stare decisis, because he soon joined a majority that held the holding in Ramos should not be applied retroactively.20 Justice Kagan dissented, stating that “[t]he majority crawls under, rather than leaps over, the stare decisis bar.”21 Far from predictability, the Edwards decision means that the same constitutional issue resulted in Ramos receiving habeas relief and Edwards not.

As a final example of a discussion of stare decisis in recent decisions, Justice Clarence Thomas, concurring, discussed the timing of overruling a previous decision when, according to the justice, the court has recognized that it should no longer be followed:

I write separately because, in my view, the time has come to consider discarding the Bivens doctrine altogether. The foundation for Bivens—the practice of creating implied causes of action in the statutory context—has already been abandoned. And the Court has consistently refused to extend the Bivens doctrine for nearly 40 years, even going so far as to suggest that Bivens and its progeny were wrongly decided. Stare decisis provides no “veneer of respectability to our continued application of [these] demonstrably incorrect precedents.” Gamble v. United States, [citation omitted]. To ensure that we are not “perpetuat[ing] a usurpation of the legislative power,” [citation omitted], we should reevaluate our continued recognition of even a limited form of the Bivens doctrine.22

Thus, although a case is made for overruling Bivens based on stare decisis, the predictability of such a result seems more dependent upon gathering votes of like-minded justices.

The foregoing decisions from 2020 and 2021 illustrate that stare decisis is in the forefront of the justices’ legal reasoning. However, the decisions leave questions as to how the doctrine will be applied in the development of the issues in particular areas of the law the decisions address. Are they evidence of a gradual movement of the law that responds to modern nuances of societal change, such as the evolving sentiment of the 1980s around the exclusion of persons from juries on account of race? That change was a multi-year evolution bookended by Swain v. Alabama23 and Batson v. Kentucky.24 Or are the decisions in 2020 and 2021 rumblings of a greater seismic event reflecting political shifts? Time will tell, but in the interim, these larger questions about how stare decisis is being used impact the predictability upon which practicing lawyers depend.

1. “‘Stare decisis’ is short for stare decisis et non quieta movere, which means ‘stand by the thing decided and do not disturb the calm.’” Amy Coney Barrett, Stare Decisis and Due Process, 74 U. Colo. L. Rev. 1011 (2003) (quoting James C. Rehnquist, Note, The Power That Shall Be Vested in a Precedent: Stare Decisis, the Constitution and the Supreme Court, 66 B.U.L. Rev. 345, 347 (1986)). 2. Oliver Wendell Holmes, Jr., The Path of the Law, 10 Harv. L. Rev. 457 (1897). 3. Id. at 458. 4. E.g., Justice John Roberts’ concurring opinion in June Medical Services L. L. C. v. Russo, 140 S. Ct. 2103 (2020), discussed infra. 5. For example, in the case of Minerva Surgical, Inc. v. Hologic, Inc., 141 S. Ct. 2298, 2312 (2021), Justice Alito, dissenting, criticized both the majority opinion and the principal dissent with these words: “The Court’s evasion of stare decisis is fully matched by the principal dissent.” 6. Americans for Prosperity Foundation v. Bonta, 141 S. Ct. 2373, 2404 (2021). 7. Barr v. American Association of Political Consultants, Inc.,140 S. Ct. 2335 (2020). 8. Id. at 2351 n.8. See also Torres v. Madrid, in which Justice Gorsuch, concurring, noted an additional layer of predictability by stating that “whatever utility it may have, dicta cannot bind future courts.” 141 S. Ct. 989, 1005 (2021). The lawyer’s task thus involves discerning whether a statement in a prior case is part of the legal holding or merely dicta to which stare decisis applies. 9. Allen v. Cooper, 140 S. Ct. 994 (2020). 10. Id. at 1003 (quoting Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258, 266 (2014)). 11. Id. at 1007-1008. 12. Jones v. Mississippi, 141 S. Ct. 1307, 1336-1337 (2021). 13. June Medical Services L.L.C. v. Russo, 140 S. Ct. 2103 (2020). 14. Id. at 2134-2135. 15. Id. at 2141-2142. 16. Collins v. Yellen, 141 S. Ct. 1761, 1801 (2021). 17. Ramos v. Louisiana, 140 S. Ct. 1390 (2020). 18. Id. at 1397-1398. 19. Id. at 1403. See also Justice Kagan’s opinion in Allen v. Cooper, 140 S. Ct. 994 (2020). 20. Edwards v. Vannoy, 141 S. Ct. 1547 (2021). 21. Id. at 1580. 22. Hernandez v. Mesa, 140 S. Ct. 735, 750 (2020). 23. 380 U.S. 202 (1965). 24. 476 U.S. 79 (1986). ■