Organizadores
Ingo Wolfgang Sarlet Marco Félix Jobim Copyright© 2018 by Ingo Wolfgang Sarlet & Marco Félix Jobim Editor Responsável: Aline Gostinski Capa e Diagramação: Carla Botto de Barros CONSELHO EDITORIAL CIENTÍFICO: Eduardo Ferrer Mac-Gregor Poisot
Presidente da Corte Interamericana de Direitos Humanos. Investigador do Instituto de Investigações Jurídicas da UNAM - México
Juarez Tavares
Catedrático de Direito Penal da Universidade do Estado do Rio de Janeiro - Brasil
Luis López Guerra
Magistrado do Tribunal Europeu de Direitos Humanos. Catedrático de Direito Constitucional da Universidade Carlos III de Madrid - Espanha
Owen M. Fiss
Catedrático Emérito de Teoria de Direito da Universidade de Yale - EUA
Tomás S. Vives Antón
Catedrático de Direito Penal da Universidade de Valência - Espanha
CIP-BRASIL. CATALOGAÇÃO NA PUBLICAÇÃO SINDICATO NACIONAL DOS EDITORES DE LIVROS, RJ P932 Precedentes judiciais [recurso eletrônico] : diálogos transnacionais / organização Ingo W. Sarlet , Marco Félix Jobim. - 1. ed. - Florianópolis [SC] : Tirant lo Blanch, 2018. recurso digital ; 3 MB Formato: epdf Requisitos do sistema: adobe acrobat reader Modo de acesso: world wide web Inclui bibliografia e índice ISBN 978-85-9477-243-5 (recurso eletrônico) 1. Precedentes judiciais - Brasil. 2. Direito consuetudinário. 3. Livros eletrônicos. I. Sarlet, Ingo W. II. Jobim, Marco Félix 18-52620
CDU: 340.142(81)
Meri Gleice Rodrigues de Souza - Bibliotecária CRB-7/6439 18/09/2018 21/09/2018
É proibida a reprodução total ou parcial, por qualquer meio ou processo, inclusive quanto às características gráficas e/ ou editoriais. A violação de direitos autorais constitui crime (Código Penal, art.184 e §§, Lei n° 10.695, de 01/07/2003), sujeitando-se à busca e apreensão e indenizações diversas (Lei n°9.610/98). Todos os direitos desta edição reservados à Tirant Empório do Direito Editoral Ltda.
Todos os direitos desta edição reservados à Tirant lo Blanch. Av. Embaixador Abelardo Bueno, 1 - Barra da Tijuca Dimension Office & Park, Ed. Lagoa 1, Salas 510D, 511D, 512D, 513D Rio de Janeiro - RJ CEP: 22775-040 www.tirant.com.br - editora@tirant.com.br Impresso no Brasil / Printed in Brazil
PRECEDENTES JUDICIAIS DIÁLOGOS TRANSNACIONAIS
SUMÁRIO PARTE 1 - ARTIGOS ESTRANGEIROS . . . . . . . . . . . . . . . . . . . . . . .
7
SUPREME COURTS IN THE 21ST CENTURY: SHOULD ORGANIZATION FOLLOW THE FUNCTION? . . . . . . . . . . . . . . . . . . . . . . . . . 9 Prof. Dr. Alan Uzelac
“PRECEDENT AND COURTS” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27 David M. O’Brien
LE PRÉCÉDENT EN DROIT FRANÇAIS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39 Paul-Maxence Murgue-Varoclier
GUIDING CASES IN CHINESE LEGAL SYSTEM. . . . . . . . . . . . . . . . . . . . . . . 65 Dr. TU Yunxin
PARTE 2 - ARTIGOS BRASILEIROS . . . . . . . . . . . . . . . . . . . . . . . .
81
A SENTENÇA ARBITRAL DEVE SEGUIR O PRECEDENTE JUDICIAL DO CPC/2015? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 83 Andre Vasconcelos Roque Fernando da Fonseca Gajardoni
SISTEMA BRASILEIRO DE PRECEDENTES JUDICIAIS OBRIGATÓRIOS E OS DEVERES INSTITUCIONAIS DOS TRIBUNAIS: UNIFORMIDADE, ESTABILIDADE, INTEGRIDADE E COERÊNCIA DA JURISPRUDÊNCIA. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 89 Fredie Didier Jr.
O MODELO DOS PRECEDENTES NO CÓDIGO DE PROCESSO CIVIL BRASILEIRO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 105 Hermes Zaneti Jr.
A RECLAMAÇÃO COMO REMÉDIO JURÍDICO PROCESSUAL PARA A SUPERAÇÃO DE PRECEDENTES . . . . . . . . . . . . . . . . . . . . . . . . . . . 119 Ravi Peixoto
PRECEDENTES JUDICIAIS E ANTECIPAÇÃO DE TUTELA NO SISTEMA PROCESSUAL BRASILEIRO. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 147 Rogéria Dotti Thais A. Paschoal Lunardi
PRECEDENTES E CASOS REPETITIVOS. POR QUE NÃO SE PODE CONFUNDIR PRECEDENTES COM AS TÉCNICAS DO CPC PARA SOLUÇÃO DA LITIGÂNCIA DE MASSA? . . . . . . . . . . . . . . . . . . . . . . . . . . . . 169 Sérgio Cruz Arenhart Paula Pessoa Pereira
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A FUNÇÃO INSTITUCIONAL DAS CORTES SUPERIORES . . . . . . . . . . . . 205 Thiago Rodovalho
PARTE 3 - ARTIGO TRADUZIDO . . . . . . . . . . . . . . . . . . . . . . . . .
215
CORTES SUPREMAS NO SÉCULO XXI: A ORGANIZAÇÃO DEVE AMOLDAR-SE À FUNÇÃO?. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 217 Prof. Dr. Alan Uzelac
Traduzido por: João Antônio Tschá Fachinello Lívia Losso Andreatini Máriam Joaquim
PARTE 4 - LECTURES BY PROFESSOR DAVID M. O’BRIEN . . Prof. David M. O’Brien (Transcritas por Hannah Alff)
235
LECTURE 1 - SUPREME COURT & CONSTITUTIONAL LAW’S
FLUIDITY – INSTITUTIONAL DYNAMICS . . . . . . . . . . . . . . . . . . . . . . . . . . . 237 Prof. David M. O’Brien
LECTURE 2 - NATIONALIZATION OF THE BILL OF RIGHTS + OTHER “FUNDAMENTAL RIGHTS AND LIBERTIES” . . . . . . . . . . . . . . . . . . 249 Prof. David M. O’Brien
LECTURE 3 - THE OTHER (STATE) SUPREME COURTS’ PROTECTION OF THE HUMAN RIGHTS: BEYOND THE “FEDERAL MINIMUM FLOOR” . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 257 Prof. David M. O’Brien
LECTURE 4 - WHAT IS “FREE SPEECH”? HOW FREE IS SPEECH? HOW FREE SHOULD SPEECH BE? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 263 Prof. David M. O’Brien
LECTURE 5 - THE RIGHT OF PRIVACY: A MODERN METAPHOR FOR AGE-OLD PROBLEM: LIBERTY AGAINST GOVERNMET . . . . . . . . . . . 269 Prof. David M. O’Brien
LECTURE 6 - FREEDOM OF AND FROM RELIGION . . . . . . . . . . . . . . . . 277
PARTE 1 ARTIGOS ESTRANGEIROS
SUPREME COURTS IN THE 21ST CENTURY: SHOULD ORGANIZATION FOLLOW THE FUNCTION? Prof. Dr. Alan Uzelac
University of Zagreb, Faculty of Law
Colloquium “The functions of the Supreme Court – Issues of process and administration of justice” Warsaw, 11-13 June 2014
1. INTRODUCTION In May 1997, the International Association of Procedural Law devoted its Thessaloniki Colloquium to the comparative research on the national and supra-national supreme courts. This event, which produced a comprehensive publication1, gave a survey of global issues pertinent for the work of the supreme courts at the end of the 20th century. Now, almost two decades later, it may be time to see what has changed, and whether there are any new trends and developments that have changed the landscape of national judiciaries and their supreme judicial institutions. The dominant focus of the last IAPL attempt to deal with supreme courts was on their role and function. However, in the conclusion of his general report, distinguished professor and IAPL member, late Professor Tony Jolowicz noted that “there is a substantial degree of consensus on the main topic [role and function of the supreme courts]”. In fact, he said, while we all agree that the supreme courts must serve a variety of predominantly public purposes, the focus needed to be shifted to the “How?” question.2 One of the important but generally less discussed aspects of the “How?” question is the organization of the supreme courts. Namely, if the supreme 1. 2.
See Yessiou-Faltsi (ed.), The Role of the Supreme Courts at the National and International Level, Athens: Sakkoulas, 1997. J.A. Jolowicz, The role of the Supreme Court at the national and international Level, in: Yessiou-Faltsi, op. cit. (note 1), p. 63.
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courts aspire to fulfill certain special social goals a necessary precondition is to have appropriate organizational structures, means and personnel to realize the defined mission. And, in particular, if the court system is evolving, and some changes in functions and purposes of the highest tribunals occur, it may have to reflect on its organization – or, on the contrary, the supreme courts may face the risk of failing to deliver what is promised due to inadequate framework for the new tasks. In this report, I will not provide an in-depth analysis of the various organizational elements that have an impact on the successful work of the supreme courts. Rather, I will only try to outline a few developments regarding the role and functions of the supreme courts that have become more prominent in the first decades of the 21st century, and point to the need of more thorough comparative and empirical research of their impact on the organization of the supreme courts. As will be demonstrated later, some of those new functions are doubtful and stretch the institutional capacity of the supreme courts to successfully deal with them beyond the limits, therefore leading to the need of rethinking and, as the case may be, changing the course of development. On the other hand, some developments are ultimately inevitable and necessary, but invoke the need to adjust the organizational structures and introduce new organizational elements, while abandoning or reducing the existent ones. In the second part, as an illustration of the possible comparative and empirical research regarding the organization of the supreme courts based on the quantitative data analysis, I will examine information supplied by the European national judiciaries to the European Commission for the Efficiency of Justice (CEPEJ). What will be extracted is the data on the number of the supreme court judges in national justice systems of the member states of the Council of Europe. Based on the comparison of data for selected set of small, medium-sized and large European jurisdictions, some provisional conclusions regarding balance between the public and private functions in the European national supreme courts will be suggested for further discussion and research.
2. TRENDS AND DEVELOPMENTS REGARDING NATIONAL SUPREME COURTS: WHAT MAY BE CHANGING IN THE THIRD MILLENNIUM? As history teaches us, in judicial matters several decades usually do not bring revolutionary changes. The same is true for the developments regarding the supreme courts, which are among the most established (and therefore
Prof. Dr. Alan Uzelac 11
inert) judicial institutions. Still, we believe that, at least as a matter of quantity and intensity (if not as a qualitatively wholly new features) some global and regional developments do have a more or less profound impact on the work of the highest judicial institutions in the past few decades. Such developments could significantly change the way in which they operate – asking for new organizational structures and methods of work. First change in the work of the national supreme courts is associated to the rise in the activity and the case law of the supra-national and international level. Though the courts such as the European Court of Human Rights in Strasbourg and the Court of Justice of the European Union existed since the 1950’s, the intensifying of their activity and production of the ever-increasing case law was raised to a much higher level since the late 1990’s and further on in 2000s. Other international courts, especially related to international criminal law (ICTY, ICTR and ICTR), contributed to the internationalization of matters that were earlier ending in the supreme national institutions. Thereby, the supreme courts are increasingly becoming less supreme, bound to pay more and more attention to the matters that were previously in the sovereign domain of their sound discretion in interpretation of legal norms. At the organizational level, this raises several new issues. On one hand side, the supreme courts need to be in position to monitor not only its own case law, but also to follow the relevant case law of the supra-national courts that are in some matters undoubtedly “higher” than the highest courts in national judicial hierarchies. This demands creation of adequate services, and extension of staff and organizational units devoted to legal research. Ultimately, in the case of interpretation of some legal instruments, such as the EU law, the supreme national courts must have capacity and structures needed for reference to and dialogue with the international judicial institutions (eg in preliminary ruling procedure, or in retrial of cases where court in Strasbourg found violations of European Human Rights Convention)3. Although most of the supreme courts today have some staff, department or office that are entrusted with legal research and analysis, the rise in importance of international jurisprudence is putting on the agenda the need of restructuring and reinforcing the existing departments. This development may have twofold consequences: first, the supreme courts becoming less and less self-centered in their adjudication; and, 3.
See Art. 267 of the TFEU. The notion of „European judicial dialogue “was introduced and used in the 2000s to describe the interaction of the highest national tribunals with the European judicial bodies (‘vertical dialogue’). See e.g. Carl Baudenbacher, The EFTA Court: An Actor in the European Judicial Dialogue, Fordham Int’l LJ, 28:353-391 (2005).
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PRECEDENTES JUDICIAIS: DIÁLOGOS TRANSNACIONAIS
second, the change in the organization and methods of work by focusing on legal research and analysis of international and comparative law. The latter may mean the imperative of embedding units and departments entrusted with comparative research and monitoring of legal developments not only at the national, but also in international and supra-national level. Some European supreme courts, such as German BGH, have made important structural changes in that direction. The BGH currently employs over 50 “scientific assistants”4 which prepare the work of judges and assist them in drafting judgments, using inter alia a court library of over 400.000 publications. Therefore, in comparative study of the supreme court organization, attention will have to be paid to the structures that are being set up to meet the demand of following international jurisprudence and case law, and to the way how their work affects the decisions of the highest national tribunals. Indeed, for all those who have not established sufficient or comparable organizational units, this should serve as guidance and encouragement. Second change that has an impact on the organization of the supreme courts is connected with the technological revolutions5, in particular to so-called digital revolution and information revolution. Though those notions refer to changes caused by introduction of new technology that partly reach back to 1950’s, it seems that most of the judiciaries around the globe relatively successfully resisted to them until 2000s. However, in the 21st century not even the supreme courts, which are often strongholds of traditional, well-established methods and technologies, cannot remain immune to the changing world of internet, electronic communications and IT to which the users of judicial services got accustomed to. Superficial changes, such as the introduction of computers for the daily routine work, happened relatively fast. For more affluent judiciaries, the use of video- and audioconferencing also became reality. However, the potential of technological revolutions that have na impact on the work and the organization of the supreme courts goes far beyond these points. The trend towards designing integral case management system for all courts (ICMS) poses natural challenges to the role of the supreme courts. The “integral” systems as such need unified management and professional supervision that cannot be left to technical experts. The clash between often fuzzy legal logic and stringent mathematical logic of digital systems, and the 4. 5.
Wissenschaftliche Mitarbeiter, or wissenschaftliche Hilfskräfte, see § 193 Abs. 1 GVG. On the notion of technological revolution see Bostrom, Nick, Technological revolutions: Ethics and Policy in the Dark, in: Nigel M. de S. Cameron and M. Ellen Mitchell (eds.), Nanoscale: Issues and Perspectives for the Nano Century, (John Wiley, 2007): pp. 129-152.
Prof. Dr. Alan Uzelac 13
potential incompatibilities of various systems introduced in different times by different actors invoke a need for one central, highest institution that would secure interoperability and uniform application of new technologies across all judicial bodies. These tasks may be partly in the domain of executive bodies (eg ministries of justice) or the special services (eg councils for judiciary), but the central role of the Supreme Courts in the supervision of the work of the lower courts and secure uniformity of their work naturally calls for its active participation, if not leadership. On the other hand, the Supreme Courts are facing the challenge of adjusting their own practices to the new case management systems. They offer much faster and more complete insight into the work of the lower bodies of judicial hierarchy (including instant statistical monitoring and reporting), and thereby enable more accurate and speedy reaction to diagnosed problems. Nevertheless, they also raise public expectations in terms of speed and transparency of the work of all actors, including supreme courts. Not only that the standards of work change with technological revolutions, but new work arises as well. The information components of the technological revolutions calls for publication of case law in electronic databases. One of the new functions assumed by (some) supreme courts is in the establishing or supervision of on-line publication systems for court judgments – at least of those of the Supreme Court, but often also of the other high tribunals. The effective maintenance of these information systems, user-friendly policies and practices, and good search engines are becoming an important part of the services that are provided by the highest national judicial bodies. They also call for the adequate organization, able leadership, good IT departments and close co-operation with other institutions and bodies within and outside of the judiciary. Taking into account the composition of the Supreme Courts, which are in many countries staffed by senior career judges whose professional training and socialization date back in the ages much before the technological revolutions, the challenge of new technologies may be considerable. All these factors should be discussed more thoroughly in the future comparative work on supreme courts6. Finally, the third change that is happening to the supreme courts has a more complex and diffuse nature, and has a more political than a 6.
A special attention should be devoted also to the role of the supreme courts in eventual selection of leading cases (or cases that will appear in the on-line database), or the policies applied by the court regarding summarization, anonymization of judicial decisions, timing and other aspects of publication of case law. Some of these elements were controversial in Croatia, and it was argued that Court’s department for monitoring of case law (evidencija) assumes too broad informal powers in selecting “good“ and “bad“ law of the court.
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PRECEDENTES JUDICIAIS: DIÁLOGOS TRANSNACIONAIS
legal or technical origin. It deals with the regional and global trends in the understanding of the concept of judicial independence, and the resulting shift in powers that presses the supreme courts to assume more powers and responsibilities for the overall administration of justice. At least in Europe, it seems that for many jurisdictions, in particular those from post-Socialist countries (but not only them), the emphasis put on the independence of judiciary resulted in the evolving idea that judiciary should not only be independent in the adjudication of cases (functional independence), but also independent in its own management (organizational or corporate independence of judiciary). The proof for this submission comes both from the common and civil law jurisdictions. The formation of the Supreme Court of the United Kingdom, that has assumed all judicial functions of the House of Lords, was motivated by the wish to enhance the separation of judicial, legislative and executive powers by organizational measures. In the rest of Europe, the trend of establishing High Councils for Judiciary, or broadening of their competences, is also motivated by the idea that judiciary should be self-managed (autogoverno della giustizia). While not entering into discussion about the advantages and disadvantages of this trend, it should be noted that supreme courts have also been affected by it, though differently in different countries. The common denominator is the tendency to intensify the engagement of the supreme courts in the decision-making on matters that are not strictly of judicial nature, but affect the work of the national judiciary and have an impact on the overall administration of justice. A borderline example is the engagement of the supreme courts in the fight with delays and backlogs in the national judiciary. Namely, one of the inherently modern means of intervention into cases that last excessively long in various jurisdictions (among them Croatia and Poland) is the one inspired by the case law of the ECtHR, and has prima facie judicial nature. It is the ruling upon individual petition ordering the lower courts to accelerate the proceedings and/or pay just compensation for the fair trial violation, which may be issued by courts of higher jurisdiction, including the supreme courts. The statistical share of such cases has recently become considerable in some countries, raising also the organizational issues (eg who should deal with them, as such cases are usually regarded as too simple or trivial for the supreme court judges). However, the involvement of highest courts in speeding up the cases at lower courts may take other, more policy-related forms. In Croatia, the
Prof. Dr. Alan Uzelac 15
Supreme Court and its president have launched in 2006 a project on reduction of ‘old cases’ (defined as all cases lasting over three years).7 The project involves monitoring of these cases, their assignment of higher priority in case-flow (inter alia marked by issuance of ‘red covers’ for these case files), and the need for regular periodical reporting by lower courts on the resolution of these cases. The activities of the Supreme Courts in the area of securing right to trial within reasonable time in principle require only moderate organizational adjustments (eg. special judicial formations for speeding up applications; engagement of law clerks or temporary assignment of judges of lower courts; administrative offices for statistics on time-management in lower courts). Considerably more demanding may be the transfer of the powers on the supreme courts in the domain of financing of judiciary and creation of court budgets. In Slovenia, since 2000 the Supreme Court assumed the highest power for the financial distribution of means acquired from the state budget, based on the ‘lump-sum’ awarded by the Government. The Supreme Court thereby became the highest body of financial autonomy of the Slovenian judiciary, again with the argument that such an autonomy is beneficial for the (corporate) judicial independence. However, this move required establishment of the general financial services and the adjustment of a number of departments of the Supreme Courts8. Finally, another trend that may be diagnosed in some jurisdictions is in the more intensive participation of the supreme courts and its judges in the design, interpretation and amendments of the statutory law, not via adjudication in concrete cases, but in a more abstract manner. Here, we can distinguish softer and indirect forms from direct, mandatory form. One way of influencing the design of legal norms and their interpretation is in the institutional participation of the Supreme Court or its members in the drafting committees and other bodies entrusted with legal reforms. Another way of influencing the case law without being active as adjudicator in concrete cases may happen when supreme courts arrange meetings with judges of lower courts and discuss issues that occur or may occur in their practice. The practice of regular meetings with the judges of lower courts is a regular feature of Russian courts, where it is so accustomed that it had an impact on the architecture of court buildings – all larger federal 7. 8.
See http://www.vsrh.hr/EasyWeb.asp?pcpid=780; http://www.vecernji.hr/hrvatska/jos-uvijek-imamo-osamtisuca-nerijesenih-predmeta-starijih-od-14-godina-840200. See http://www.sodisce.si/sodisca/posebne_sluzbe/skupna_financna_sluzba/.
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courts dispose of conference or congress facilities which are big enough to assemble all or almost all judges of the lower courts. A softer, but equally effective form is taking place when Supreme Court or its members participate in the programs of education and professional training of current and future legal professionals, or sit in the examining commissions that control the entry to judicial and other legal professions. These activities give opportunity to set forth the law and express opinions on its purpose and meaning, they reinforce the institutional monopoly of the supreme court judges on the construction of national legal rules. However, there may be other, more direct ways as well. Some supreme courts in Europe and Asia maintain the practice of issuing practice directions, decrees and opinions that regulate certain field or interpret the law. They may be phrased in an abstract and impersonal way, outside of any concrete pending cases, and often have a binding force for all judges. Such general decrees and opinions are regularly issued by the larger formations or even the plenary session of the court, and thereby even in their outer shape resemble the legislative process. All these extended nonadjudicative ways of influencing the law are being legitimized by the argument that they are necessary in the interest of the public purpose of the supreme court, ie in the interest of securing uniform application of law. However, it is questionable both whether the supreme courts are institutionally capable of producing good and consistent drafts of general legal acts, and whether this encroachment into the functions that are normally reserved for the legislative branch of government is compatible with the constitutional norms of the states that recognize the doctrine of separation of powers.910 We may be reminded here on the wise words of Jolowicz, who argued that “since Supreme Courts are courts, any contribution they may make to a public purpose is, and must continue to be, by way of their decisions in actual live cases.”11 See on the critique of “authentic interpetation” of the Supreme Court, in a Croatian example, Rodin, S., Vjerodostojno – jedinstveno tumačenje zakona odjela Vrhovnog suda RH – sedam smrtnih grijeha članka 57. prijedloga Zakona o sudovima, Pravo u gospodarstvu, 44(2005),3:str.80-87. 10. Indeed, if this is not the case, like in PR of China, the Supreme Court openly and without any reservations accepts that it has overlapping jurisdiction with other bodies of government. 11. Jolowicz, op.cit. (note 2), p. 62. Admittedly, some encouragement for overstepping the thin line between a “court” and another body of government may be found in the recent developments regarding the powers of the European Court of Human Rights. By the Protocol 16 to the European Convention the ECtHR will be granted the right to issue advisory opinions on questions of principle upon request of highest courts and tribunals of the CoE member states. The opinions of the Court will not be binding, and should build upon its ‘consitutional’ role, but this development may anyway sparkle new initiatives to give comparable powers to national supreme courts vis-a-vis the lower courts in judicial hierarchy. It may be noted that Protocol 16 stays in contradiction with the previous ECtHR practice to avoid using its authority to issue advisory opinions under Art. 47 of the ECHR. 9.
Prof. Dr. Alan Uzelac 17
3. SIZE MATTERS: DOES THE NUMBER OF SUPREME COURT JUDGES HAVE AN IMPACT ON THE COURT’S ABILITY TO REALIZE ITS PUBLIC PURPOSE? The trends and developments described in the previous chapter may be significant for the presente and future of the supreme courts and their organization, but the core of the work of the supreme courts is, and will remain to be, fulfillment of its main functions by adjudication of individual matters. In approach of the supreme courts to this main area of work, the most essential issue raised in comparative analysis was the balance between the two different kinds of objectives which the supreme courts seek to achieve, defined through the notions of “public” and “private” purposes of the exercise of their jurisdiction. It is commonly held that, at the supreme court level, the public purpose of clarification, unification and development of the law should play a prominent, if not exclusive role. On the other hand, it is also manifest that many supreme courts, in particular in the civil law tradition, still devote a large part of their activities to private purposes, ie to resolving disputes in which the private interest of the parties – dispute resolution according to law – dominate. In extreme cases, such as in Italy, the private purpose is elevated to the level of constitutional principle according to which anyone has a right to have his or her case heard and adjudicated by the Supreme Court (Corte di cassazione). It seems that the comparative research suggests that, at least for those countries in which the crowded dockets adversely affect the ability to deal with really important matters of general importance, more attention should be paid to the public purpose. As Jolowicz observed, “it is manifest that a Supreme Court will be unable adequately to fulfill its public purpose role if its judges do not have the time for full discussion and reflexion on the complex problems they have to consider”.12 However, there are different ways to cope with the larger number of cases imposed by the shifting of balance in favor of private purpose. One of the ways is to employ the larger number of judges and create larger organizational structures that could cope with the high number of incoming cases. The highest tribunals, which are more restrictive and concentrate on their public function, may need a significantly lower number of judges. From that perspective, it may be interesting to compare the composition of the supreme courts and analyze the relationship between the number of judges and the dominant role and function of those courts. Apparently, really important legal issues for a legal community do not depend on the 12. Jolowicz, op. cit., p. 56.
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size of the jurisdiction, so that, irrespective of the population or territory covered by the court’s jurisdiction, they may be discussed and decided by a relatively small number of judges. But, if a supreme court is invited, or even bound to hear individual cases selected by mechanical criteria (value of the type of case), it is to be expected that bigger jurisdictions should need more supreme court judges than those whose population is smaller. A relatively complete and representative comparison of the number of supreme court judges in the European countries can be derived from the reports of the European Commission for the Efficiency of Justice. Within its evaluation rounds, one of the issues that is subject to the reporting of the competent state authorities is the number of judges at various levels. Based on the official reports of the national correspondents based on the uniform scheme for evaluating judicial systems, the CEPEJ assembles its regular bi-annual surveys that evaluate European judicial systems (EJS reports). Among other data, distribution of professional judges between various levels of jurisdictions, including the supreme court judges, is analysed and presented. For instance, in the latest EJS report (Edition 2012 based on the 2010 data), one of the figures present the ratios of judges of lower courts (first and second instance) and the supreme court judges:
The CEPEJ report demonstrates interesting divergences in the ratio of lower and higher court judges. However, the CEPEJ report does not analyse the data on the absolute number of the supreme court judges, and neither does it
Prof. Dr. Alan Uzelac 19
put these figures in relation with the size of the particular jurisdiction. However, as the raw data is available13 and may be extracted from the national reports of particular countries, which is publicly available.13 In the next table, this data is presented in a shortened and partly modified form. The number of European jurisdiction was reduced, and includes a selection of small, mid-sized and large jurisdictions from all sides of Europe; for reasons of comparison, some representative common law jurisdictions, such as those of the United States and Australia are added (marked with *). The states that made remarks and reservations, such as the United Kingdom (England and Wales) and Russian Federation, are marked with **. Finally, a separate figure for the Federal Court of Germany (Bundesgerichtshof) was added, and showed together with the declared German figure on the number of supreme court judges, that is calculated on the bases of total number of all judges in five German highest courts.14 País
População
Número de Juízes na Corte Suprema
População per Juiz
Austrália
21.507.717
7
3.072.531
Bélgica
10.839.905
27
401.478
Bósnia e Herzegovina
3.843.126
96
40.033
Bulgária
7.364.570
175
42.083
Croácia
4.412.137
40
110.303
Chipre
804.536
13
61.887
República Tcheca
10.517.247
231
45.529
Inglaterra e Gales**
55.200.000
12
4.600.000
França
65.026.885
335
194.110
Alemanha (dados CEPEJ) 81.751.602
915
89.356
Alemanha (apenas BGH) 81.751.602
129
633.733
Grécia
11.309.885
270
41.888
Itália
60.626.442
295
205.513
Moldávia
3.560.430
47
75.754
Mônaco
35.881
15
2.392
Montenegro
620.029
18
34.446
13. See http://www.coe.int/t/dghl/cooperation/cepej/profiles/default_en.asp. 14. Bundesgerichtshof (BGH) in Karlsruhe, Bundesverwaltungsgericht (BVerwG) in Leipzig, Bundesfinanzhof (BFH) in Munchen, Bundesarbeitsgericht (BAG) in Erfurt and Bundessozialgericht (BSG) in Kassel.
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Prof. Dr. Alan Uzelac 21
The above table shows considerable variety and range of figures: while some countries have less than ten supreme court judges, some other have declared almost a thousand. However, if very small jurisdictions (Cyprus, Monaco, Montenegro) and common law countries are excluded, and Germany is counted only according to the number of BGH judges, the divergences are reduced to about 1 to 15 ratio (from about 20 judges to about 300 judges). Here is the grouping of countries according to the above criteria:
Países Baixos
16.655.799
38
438.311
Noruega
4.920.305
20
246.015
Polônia
38.200.000
178
214.607
Portugal
10.636.979
85
125.141
Romênia
21.431.298
108
198.438
Rússia**
142.914.136
163
876.774
Eslovênia
2.050.189
37
55.411
Espanha
45.989.016
79
582.139
Menos de 20
De 20 a 50
De 50 a 100
De 100 a 200 Acima de 200
Suécia
9.415.570
39
241.425
Turquia
72.561.312
277
261.954
Estados Unidos
309.300.000
9
34.366.667
Austrália, Estados Unidos, Reino Unido (Inglaterra e Gales), Chipre, Mônaco e Montenegro
Noruega, Bélgica, Eslovênia, Países Baixos, Suécia, Croácia e Moldávia
Espanha, Portugal e Bósnia e Herzegovina
Romênia, Alemanha (BGH), Rússia, Bulgária e Polônia
Table: Population, number of judges of the supreme courts, population per judge.
Here is the charts that ranks the jurisdictions according to the number of supreme court judges:
República Tcheca, Grécia, Turquia, Itália e França
Sorted this way, the table reveals a lot of similarities in legal traditions and history among the grouped countries. The countries with less than 20 SC judges are either extremely small jurisdictions, serving few hundred thousand people (Monaco, Montenegro), or belong to common law tradition (UK, US, Australia), or both (Cyprus). The group of countries between 20 and 50 SC judges includes Northern Europe – Scandinavian countries, Belgium and the Netherlands, and some smaller European jurisdictions (Slovenia, Croatia, Moldova – all with less than 5 million inhabitants). In the group between 50 and 100 SC judges we find the South-West of Europe – Spain and Portugal, and Bosnia and Herzegovina (in which a very high of supreme court judges is attributable to its peculiar – and dysfunctional – constitutional design). Countries between 100 and 200 SC judges include Germany (only BGH) and some larger post-socialist states (Romania, Russian Federation, Bulgaria and Poland). Barely escaping the previous group, Czech Republic is in the group of countries with over 200 judges. There, we find the large European countries of the ‘cassational’ model, such as Italy and France. Ominously, among them are some other South-European countries, such as Greece and Turkey. The selected jurisdictions widely differ by their size and population, and range from Monaco – a country of barely 35 thousand inhabitants, to the U.S. that has almost ten thousand times bigger population. In order to inquire what is the impact of size of population on the size of supreme
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courts, the next table puts into relationship population and number of supreme court judges, showing the size of population per one supreme court judge, as well as ranking of the country in terms of population. País
População por juiz da Ranking (População) Suprema Corte
Estados Unidos
34.366.667
1
Inglaterra e Gales
4.600.000
8
Austrália
3.072.531
11
Rússia
876.774
2
Alemanha (apenas BGH)
633.733
3
Espanha
582.139
9
Países Baixos
438.311
13
Bélgica
401.478
15
Turquia
261.954
5
Noruega
246.015
20
Suécia
241.425
18
Polônia
214.607
10
tália
205.513
7
Romênia
198.438
12
França
194.110
6
Portugal
125.141
16
Croácia
110.303
21
Alemanha (dados do CEPEJ)
89.356
4
Moldávia
75.754
23
Chipre
61887
25
Eslovênia
55.411
24
República Tcheca
45.529
17
Bulgária
42.083
19
Grécia
41.888
14
Bósnia e Herzegovina
40.033
22
Montenegro
34.446
26
Prof. Dr. Alan Uzelac 23
Mônaco
2.392
27
Table: Ranking of the countries according to the population served by one supreme court judge.
As expected, the extremes in this table are even more far apart: while one judge of the supreme court of Monaco serves less than 2,5 thousand people, in the US one SC judge comes on every 34,4 million inhabitants. Does this also confirm that supreme court judges in larger jurisdictions inevitably have to serve larger number of people than in the smaller ones? A certain soft tendency to confirm this submission may be seen in the lowest (Monaco, Montenegro) and the highest (US, Russia) rows of this table. But, all other data is too diverse to support this conclusion. The millions of inhabitants per supreme court judge in the top of the table are attributable rather to legal tradition and the special function of the supreme courts in common law countries than to their sheer size or population. Equally, the relatively low population-per-judge figures in the lower part of the table can be more attributed to geographical and cultural factors, than to the small size of the country. The fact that the countries with less than 100 thousand people per SC judge include mainly the South of Europe (post-Yugoslav countries, Bulgaria, Greece, Cyprus) can be a proof of it. Also, few large European jurisdictions, such as Italy, France, Romania and Portugal, still belong to the lower part of the table, which is due more to their common judicial history (‘Romanic’ cassational model) than to their relative size. Having said all that, we may conclude by some questions and statements that can be taken as a challenge for further research. 1. Does this analysis indicate that the judicial bodies called “supreme courts” and their members called “supreme court judges” are even more different than we originally thought, so that we should refrain from treating them as similar or even comparable? Perhaps not… completely. However, these differences should caution from resorting too early to premature comparisons. They also need further research and analysis. 2. Can we take the fact that, unlike their common law counterparts, supreme courts of civil law countries are composed of dozens or hundreds of judges as a proof that these courts still predominantly serve the private purpose, with only moderate inclination towards public purpose? Again, it is not proven…. fully. But, the number of
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systemically important legal issues is not inexhaustible, and in order to keep a systemic perspective, one should keep it manageable. 3. Can we expect that a court with a high number of judges will make a decisive turn from private to public purpose? Perhaps… but not very likely. It is undoubtedly more difficult to have uniform views and decisions on important legal and social issues in a court with 300 judges, and in the court with 10 judges. Thus, the wish to engage in consistent interpretation and development of law and uniformization of the case law of lower judicial bodies while observing and developing your own case law imposes difficult organizational challenges in large courts, where a plenary debate and mutual interaction of all judges is impracticable and almost impossible. In addition, once when daily routine in adjudication of repetitive matters prevails, it is difficult to adjust to idea of having to develop law and reinvent new rules and principles in every case. 4. Finally, is there a link between the organizational elements, such as the number of judges and the population they serve, and the efficiency of the court work? Can we conclude that, paradoxically, smaller supreme courts whose judges serve more people are in fact more efficient than big courts with large number of supreme court judges? There has not been any conclusive evidence for that submission…. yet. Still, analyzing the population-per-SC-judge table, it may be striking that the lower part of the table more often than not contains countries that experience more or less permanent crisis in their judicial systems with issues such as trial within a reasonable time or efficient protection of individual rights. Looking at the top side, there are few jurisdictions that experience problems of such nature. Of course, one may argue that the blessings of efficiency come at considerable expense: that many of those who might have been able to assert their rights in the highest judicial instances have been deprived of their right of access to justice. Is this true or not, is another question. It is hard to say that Australian or American citizens are more deprived of their access to justice then citizens in Greece or Bulgaria only because their supreme courts have much stricter filters for incoming cases. On the contrary, just like with the Holy Grail, it seems that citizens have more trust in the courts that are exclusive, unique and – to a certain level – elusive and hardly reachable.
Nevertheless, this opens a wholly different story, which may also need further comparative and empirical research, this time of a different
Prof. Dr. Alan Uzelac 25
kind. Short of venturing to that journey, allow me to end this speech with another provisional conclusion. A true challenge for the supreme courts in the 21st century, both organizational and functional, will be to maintain effective work, concentrating on really important cases, but at the same time not sacrificing public confidence in the justice system and their own public image of transparency and accessibility. The legend of Johann William Gravenitz, the Miller of Sanssouci, speaks of a citizen who, being threatened by an angry king (Frederick the Great), expressed pride and defiance, confident that his rights will be protected by the “Supreme Court in Berlin”. Just as in the 17th century, the citizens of the 21st century must not lose their confidence (even if illusionary one) that, ultimately, ‘their’ Supreme Court will defeat injustices.
“PRECEDENT AND COURTS” David M. O’Brien Generalizations about legal precedent are, much like those about the law of standing to sue, as Justice William O. Douglas (1939-1975) discouragingly but candidly said, “largely worthless.” Precedents nonetheless are and remain central to English common law, and reliance on them has been introduced elsewhere, though not without controversy. ***** The importance of precedent ostensibly resides in its instrumental values—values both internal and external to courts. The internal value of precedent, arguably, lies in promoting non-arbitrary judicial decision making. Among others, Alexander Hamilton in the Federalist No. 78 championed the idea that, “To avoid arbitrary discretion in the courts, it is indispensable that they should be bound down by strict rules and precedents, which serve to define and point out their duty in every particular case that comes before them.” Rather romantically, Justice Henry Baldwin (1830-1844) confessed: “We must respect the solemn decisions of our predecessors and associates, as we may wish that those who succeed us should respect ours, or the supreme law of the land, so far as it depends on judicial interpretation, will change with the change of judges.” Over a century later, Lord Patrick Devlin more soberly counseled respect for precedent “primarily as a safeguard against arbitrary and autocratic decision-making.” Breaking with precedent, moreover, demands a certain judicial creativity and “labor,” as Justice Benjamin Cardozo (1932-1938) explained: “It is easier to follow the beaten track than it is to clear another.” Indeed, judges may “take refuge in a precedent” in order not to justify their decision, as Justice Robert H. Jackson (1941-1954) pointed out, and (however disingenuously) simply “reluctantly feel himself bound” by a prior decision. Judges and scholars more often praise the external values or reliance on
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precedent for promoting certainty, stability, and predictability in the law, as well as the legitimacy of judicial rulings. An early U.S. Supreme Court, Ex parte Bollman (1807), for instance, emphasized that stare decisis (“let the prior decision stand”) was critical for ensuring that legal rules are not “uncertain and fluctuating” or subject “to change with every change of times and circumstances.” “Adherence to precedent must be,” wrote Justice Cardozo in The Nature of the Judicial Process (1921), “the rule rather than the exception if litigants are to have faith in the even-handed administration of justice in the courts.” More recently, Justice Antonin Scalia (1986-2015) lauded the Court’s commitment to “introducing certainty and stability into the law and protecting the expectations of individuals and institutions that have acted in reliance on existing rules.” The Court has also stressed that precedents reinforce the perception that its decisions are “founded in the law rather than in the proclivities of individuals,” and contribute to the public’s perception of the judicial process. Indeed, in Kimble v. Marvel Entertainment, LCC Enterprises Inc. (2015), the stare decisis principle was described as “a foundation stone of the rule of law.” Few, if any, (now or ever) defend adherence to precedent on intrinsic grounds. Even the preeminent commentator, Sir William Blackstone, in his four-volume Commentaries on the English Common Law (1765-1769), contended that prior decisions which are later overturned were simply not law in the first place. Although “it is an established rule to abide by former precedents,” Blackstone conceded exceptions arise, explaining: “For it be found that the former decision is manifestly absurd or unjust, it is declared, not that such a sentence was bad law, but that it was not law ...” In other words, previous rulings deemed erroneous were misinterpretations or imperfect approximations (by human judges) of authoritative and controlling universal principles—in divine and scientific terms; that is to say, not in accord with “the laws of Nature and Nature’s God,” and therefore justly discarded. Or, as Justice Cardozo wisely put it, “The rules and principles of case law have never been treated as final truths, but as working hypotheses, continually retested in those great laboratories of the law, the courts of justice.” ***** Clearly, precedents are not fixed in stone and self-enforcing or provide inflexible, mechanical rules to follow. Nor are they fundamentally “binding.” The so-called “binding force” of precedent, as Oxford professor C.K. Allen put it, is “a kind of sacramental phrase which contains a large element of fiction.”
David M. O’Brien 29
For, ultimately it is the judge “who must decide whether the precedent is authoritative or not.” The hard fact remains that precedents have an “open texture” – an indeterminacy or non-exhaustiveness, rooted in (any) language and our inability to foresee future applications of legal concepts. The ritual recitation of “the binding force of precedent” misleads, as another Oxford legal scholar, H.L.A. Hart argued, and presents “a false dilemma”—the dilemma of choosing between “the formalist’s heaven” in which precedents “bind as fetters bind,” or do not bind at all. The influential American Legal Realist, Judge Jerome Frank, took the next step, admonishing: “The judge, in determining what is the law of the case, must choose and select, and it is virtually impossible to delimit the range of his choice and selection.” Most justices and judges, for a variety of reasons, more or less candidly acknowledge this inescapable fact of law and life. “Stare decisis is usually the wise policy,” Justice Louis D. Brandeis (1916-1939) famously remarked, “because in most matters it is more important that the applicable rule of law be settled than that it be settled right.” Yet, as even conservative Justice George Sutherland (1921-1938) acknowledged, members of the Court “are not infallible, and when convinced that a prior decision was not originally based on, or that conditions have so changed as to render the decision no longer in accordance with, sound reason, [they] should not hesitate to say so.” Justice Brandeis’s successor and one of the Court’s most liberal members, Justice Douglas, among others, emphasized that “stare decisis—that is, established law—was really no sure guideline because what did....the judges who sat there in 1875 know about, say, electronic surveillance? They didn’t know anything about it.” Justice (and later chief justice) William H. Rehnquist (1972-2005) was even more blunt, in private correspondence, saying: “Stare decisis in constitutional law is pretty much a sham.” While political scientists debate whether (and the degree to which) justices and judges basically vote based on their political ideologies rather than follow precedent, liberal and conservative justices alike—like Justices Douglas and Rehnquist, respectively—have maintained that the text of the Constitution commands higher allegiance and priority than precedent. As Justice Douglas once observed, judges take an oath to uphold the Constitution, “not the gloss which [the Court] may have put on it.” Agreeing with Douglas, though for somewhat different reasons, during his ill-fated 1987 confirmation hearing on his nomination to the Court, Judge Robert H. Bork raised (as a
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leading advocate of a “jurisprudence of original intentions”) serious doubts about following precedents. Bork contended that “the real meaning of the Constitution ought to prevail over a prior mistake by the Court” and “the Court ought to always be open to rethink constitutional problems.” Still, he maintained that “certain precedents [are] so fixed, some issues so settled, that regardless of how you felt about them you shouldn’t vote to overrule them.” Bork gave as an example nineteenth century cases dealing with Congress’s commerce power, undergirding our economic-common market, which “however wrongly decided, should be upheld.” Nor was Bork alone in taking this position. Justice Scalia—another champion of “originalism” or the “original public understanding” of the Constitution or “original textualism”—agreed, once quoting Justice Douglas’s (above) observation. Scalia admitted that “almost every originalist would adulterate” a ruling misinterpreting the Constitution “with the doctrine of stare decisis,” but also allowed that some cases call for making a “pragmatic exception” to devotion to the original meaning of the Constitution. Of course, not all “originalists”—like Justices Scalia and Clarence Thomas (1991——)—agree on the “original meaning,” for instance, of the First Amendment, or the degree of deference due precedents—however wrongly decided or however long ago. Indeed, Justice Thomas, Scalia thought, “doesn’t believe in stare decisis, period.” ***** Precedents might also be viewed along vertical and horizontal dimensions. Vertical stare decisis—the application of precedents by lower courts—has been said to be an inflexible rule, permitting no exceptions. Lower courts (and attorneys) are expected to follow and abide by them when resolving actual factual disputes over competing interests. As the Court indicated: “If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions.” English judges, perhaps even than more counterparts in other countries, have been said to pay a higher regard to prior decisions of higher courts, even at the cost of following “a previous case although they have what would otherwise be good reasons for not doing so.” Lower court judges (and lawyers), nonetheless, may and do distinguish cases at hand based on their factual circumstances, thereby narrowing or broadening a precedent’s application. They may also ”cherry-pick” precedents, circle around and circumvent them, or misapply them (while
David M. O’Brien 31
denying they are doing so), and even depart from precedent in anticipation of its eventually being overthrown by a higher court. To be sure, lower court judges and judges on multiple-panel appellate courts are subject to institutional constraints from their peers, other appellate courts, and higher courts. As former federal appellate court judge Richard Posner observed: “A judge’s influence depends on his decisions being treated as precedents by other judges. If he is cavalier about adhering to precedent in his own decisions, he weakens the doctrine of precedent and hence the likelihood that his own decisions will be followed by other judges.” In any event (and the crucial point), for both lower and high court judges “precedents bind because judges consider themselves to be bound by them, or at least to take account of them.” To again quote C.K. Allen: “We say that [a judge] is bound by the decisions of higher Courts; and so he undoubtedly is. But the superior Court does not impose fetters upon; he places the fetters in his own hands . . . . The humblest judicial officer has to decide for himself whether he is or is not bound.” In short, judges internalize the weight of precedents or else to a greater or lesser degree depart from them, and therefore more or less (obviously or not) undercut them. ***** Supreme Court justices (no less than other high and appellate courts) are no exception. They, however, have considerable—indeed, greater—discretion in dealing with their own (individual and institutional) precedents—horizontal stare decisis. They may do so in a variety of creative and strategic ways, both in the short and long run. In interesting yet often neglected ways they may not only expressly but implicitly overrule, abandon or circumvent, precedents so as to render them no longer “good law;” or undercut them by simply whittling them down to size, only then to subsequently reaffirm them. Obviously, a Court’s own prior ruling may, for any number of reasons, be reconsidered as so demonstrably erroneous that the principle of stare decisis must be abandoned. This occurred, arguably, in the landmark ruling in Brown v. Board of Education (1954), rejecting the socio-psychological underpinnings of the prior decision in Plessy v. Ferguson (1896), in holding that the doctrine of “separate but equal” no longer supported or applied to racially-segregated public schools. Nor was Brown particularly exceptional in this regard. Occasionally two precedents may come into such deep conflict (real or contrived) that they may be said to be insufficiently distinguishable or
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reconcilable, and therefore one of them must be abandoned. So too, appellate courts may (mis)apply precedents that require the Court to resolve inter-circuit conflicts among two or more circuit courts of appeals, except when the justices decide not to do so, but instead race ahead to address an important controversy. Alternatively, a supreme court may allow a controversy to play out and “percolate” in state and lower federal appellate courts before resolving a conflict among them. In addition, precedents may prove so malleable under the pressures of technological and societal changes that they become not merely outdated but so unworkable that they cannot be salvaged, and therefore overruled. The application of the Fourth Amendment’s bar against “unreasonable searches and seizure,” for example, was initially held, in Olmstead v. U.S. (1928), not to apply to warrantless searches and seizures conducted by means of wiretaps. Chief Justice William Howard Taft (1921-1930) dismissed a claim to the contrary on the basis of the common law prerequisites for establishing an illegal search and seizure—namely, (a) that there was an actual trespass on private property and (b) the seizure of tangible materials. Wiretapping, of course, entails neither. Dissenting Justice Louis D. Brandeis contended that the common law had evolved to recognize man’s spiritual nature and an individual’s right of privacy. His dissent was an appeal to the wisdom of some future understanding and to the creation of a new guiding precedent. Almost 40 years afterwards, in Katz v. U.S. (1964), the Court indeed expressly overturned Olmstead’s doctrine of “constitutionally protected areas” and substituted a new framework. Katz held that the amendment “protects people, not places” and turns on their and society’s “reasonable expectations of privacy.” And over 50 years later, the Court must now reconsider the application (or nonapplication) of Katz’s standard in dealing with the Fourth Amendment’s protection against warrantless searches with GPS devices and in the new digital age. Furthermore, some precedents may not stand the test of time yet, instead of being overturned, simply abandoned without the Court’s saying so. They are simply no longer followed or applied. Two illustrative examples are: Buck v. Bell(1927), held that the government may sterilize “feebleminded” men and women without violating their liberty under the due process of law. That holding is most certainly no longer good law. Likewise, in Korematsu v. U.S. (1944), during World War II, the Court upheld the internment of Japanese-Americans, even if the loyalty of particular individuals was not in question. That precedent remains far from precedential.
David M. O’Brien 33
So too, a supreme court may decline to overrule even watershed precedents but hold that they no longer apply in certain areas or to particular cases and controversies. Thereby, they set aside questions about the continued application of those precedents in other fields. The Warren Court did so in holding (but without overruling) the doctrine of “separate but equal” no longer applied to dual public schools for blacks and whites. Rather than a sweeping ruling reversing Plessy v. Ferguson (1896), in Brown v. Board of Education(1954), the Court merely (almost off handedly) observed in Brown that Plessy’s doctrine of “separate but equal” no longer applied to the segregated public schools. Questions about racial segregation in other areas of public accommodations—hotels, restaurants, etc.—were thus left for another day. Decisions may as well remain precedential, but so diminished by subsequent rulings and exceptions to their holdings that their rationales are fundamentally undermined. Mapp v Ohio (1961), for instance, was highly controversial in holding that illegally-obtained evidence must be excluded at trials because it was obtained in violation of the Fourth Amendment’s “exclusionary rule.” In the following 20 years, however, the Court carved out exceptions— such as ”good faith” exception and the “inevitable discovery rule”—permitting the use of illegally obtained evidence, consequently significantly cutting back on the scope of Mapp’s ruling. Furthermore, those exceptions were subsequently extended to permit the use of illegally obtained evidence if police relied on a defective warrant issued by a judge, or contained outdated or wrong information on outstanding warrants in a police department’s data base, hence sharply circumventing the scope of the application of the exclusionary rule, if not completely eliminating its utility and underlying rationale. Similarly, the “bright line rules” for police interrogations of criminal suspects, laid down in Miranda v. Arizona (1965), are no longer bright or even clear as a result of the Court’s reinterpretation of them. Contrary to Miranda, the Court no longer requires police to give the exact warnings of suspects’ rights to remain silent and to have the presence of an attorney during questioning. Moreover, the Court sanctioned the use of “police trickery” and undercover agents’ eliciting incriminating confessions which may then be introduced at trial. Such tactics have been likened to “boiling the frog.” As Judge Posner explains the metaphor: if “you want to boil a frog, you put him in warm water and gradually turn up the heat; should you put him in boiling water at the start, he would jump out and you would have to put him back in and this time hold him down. Either way he would die.”
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In other words, precedents may be said to hold up, even when in fact they don’t, and much of their reasoning has been eroded or rejected outright in subsequent cases. For instance, in the opinion for the Court in Planned Parenthood of Southeastern Pa. v. Casey (1992), a plurality reaffirmed the “essence of Roe v. Wade” (1973). Roe had held that restrictions on a woman’s right to have an abortion are subject to the “strict scrutiny” test, the highest standard of review. The Court also advanced a “trimester” approach to balancing a woman’s interests against those of the government in restricting access to abortion services. On that basis set forth in Roe, for almost two decades the Court struck down numerous regulations aimed at restricting access to abortion clinics. In ruling contrariwise, Casey discarded the “strict scrutiny” test and “trimester” analysis, in spite of reaffirming Roe. When doing so the Court substituted an “undue burden” test for evaluating restrictions on abortion, and upheld precisely the kinds of regulations that had been previously struck down under Roe. Such underhanded treatment of precedents—affirming but no longer upholding what they clearly meant when handed down—may, not surprisingly, draw sharp protest from within and without a high court. In a decision prior to Casey also gutting (without overruling) much of the ruling in Roe v. Wade, for instance, in Webster v. Reproductive Health Services (1989), dissenting Justice Scalia lamented the majority’s refusal to outright overturn Roe and that “the mansion of constitutional abortion-law” would have to be “dismantled door-jam by door-jam.” When a bare majority then again declined to expressly discard Roe in Casey, Justice Scalia, joined by Chief Justice Rehnquist and Justices White and Thomas, further decried the Court’s decision, commenting: The Court’s reliance upon stare decisis can best be described as contrived. It insists upon the necessity of adhering not to all of Roe, only what it calls the “central holding.” It seems to me that stare decisis ought to be applied even to the doctrine of stare decisis, and I confess never to have heard of this new, keep-what-you-want-and throw-away-the-rest version. . . .
Not surprisingly, perhaps, Justice Scalia’s view drew an unusual response from retired Justice Lewis F. Powell, Jr. (1972-1987), who in a speech on “Stare Decisis and Judicial Restraint,” cautioned: Those who would eliminate stare decisis in constitutional cases argue that the doctrine is simply one of convenience. . . . But elimination of constitutional stare decisis would represent explicit endorsement of the idea that the Constitution is nothing more than what five Justices say it is. This would undermine the rule of law.
David M. O’Brien 35
Conversely, the scope of holdings may become so broadly extended in later cases that their precedential value becomes overshadowed to the point of virtual abandonment. Put another way, precedents may be relegated to an earlier historical legal era’s relics. Arguably, this occurred with early rulings on the First Amendment’s guarantee for the freedom of speech and press. Subsequent rulings significantly transformed and surpassed them in building a broad system of “freedom of expression”—extending the amendment’s protection to symbolic speech, speech—plus conduct, and non-speech conduct, as well as applying the amendment to new means of communication—from print to broadcasting, cable, the internet, along with other methods of mass communications unimaginable when the amendment was adopted in 1791 and later when the first rulings on the amendment were handed down in the early 20th century. ***** It also bears emphasizing that courts and judges tend to treat statutory and constitutional precedents differently. Statutory rulings are less likely to be reversed because Congress may override them by modifying or passing new legislation. Whereas, constitutional rulings may be overturned only by a constitutional amendment, which is exceedingly difficult. When deciding whether to reconsider statutory rulings, the Court often considers how long ago a decision was handed down (the longer, the less likely to be discarded), whether it has proven unworkable, and whether its analysis led to problems that other branches could not resolve. Recently, for instance, when asked to overturn a precedent dealing with patents for a Spider-Man toy, Justice Elana Kagan (2010—-) writing for the Court declined to do so, emphasizing that stare decisis has enhanced force with respect to statutory rulings since (1) Congress could have overridden the prior decision, (2) the prior ruling’s underpinnings had not been eroded, and (3) the precedent had not proven unworkable. However, in that case, Chief Justice Roberts and Justices Thomas and Alito disagreed and dissented. By contrast, constitutional precedents are (for a variety of reasons, as suggested above) considered more open for reconsideration and reversal. As Justice Brandies noted, the Court is the only institution that may effectively correct its own errors because the process of amending the Constitution is not viable on most matters, and thus stare decisis has less force since the alternative is freezing the Court’s mistakes into constitutional law.
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***** Some justices, furthermore, distinguish between prior rulings dealing with economic issues and those bearing on civil rights and liberties, especially if decided by a bare (five to four) majority. Prior decisions dealing with economic interests and regulations are more reluctantly overturned because of the importance of settled societal expectations about economic relations and the potential for disrupting the economy as a result of upending a settled ruling. Like Justice Scalia (quoted above), Justice Edward Sanford observed that, “Decisions affecting the business interests of the country should not be disturbed except for the most cogent reasons.” In contrast, precedents pertaining to civil rights and liberties with which a justice disagrees are not considered as binding, particularly if they turned on just one vote. Such precedents appear less weighty or worthy of deference because why should the vote of a single justice in the past preclude another (later) justice from voting to reverse an earlier decision which (in his or her view) was wrongly decided and turned on just one vote. Chief Justice Rehnquist championed this view (except when he didn’t). Payne v. Tennessee (1991), for example, overruled two earlier rulings that prohibited the use of “victim-impact statements” during the sentencing stage of capital murder trials. Following the appointments of Justices David H. Souter (1990-2009) and Thomas, the Rehnquist Court grew more willing to reconsider past rulings. When granting Payne v. Tennessee, the parties were directed to address the question of whether prior decisions barring the use of victim-impact statements should be overturned. When that issue was initially addressed in Booth v. Maryland (1987), Justice Powell had cast the crucial fifth vote for barring the use of victim-impact statements. Following his retirement and the arrival of his successor, Justice Anthony Kennedy (1988——), the Rehnquist Court reconsidered the issue in South Carolina v. Gathers (1989), but this time Justice White switched sides and voted with a bare majority to reaffirm Booth. After Justice Brennan’s retirement in 1990 and the arrival of Justice Souter, the Court’s composition changed again. And by a 6 – 3 vote, with Justice White again switching his position without explanation, Payne reversed both Booth and Gathers. In handing down Payne, Chief Justice Rehnquist observed that “Stare decisis is not an inexorable command.” By contrast, dissenting Justice Marshall charged that “Power, not reason, is the new currency of this Court’s decision making,” and pointed
David M. O’Brien 37
out, “Neither the law nor the facts supporting Booth and Gathers underwent any change in the last four years. Only the personnel of this Court did.” ***** Finally, based on the history of the Supreme Court, rapid changes during a short period of time in the composition of a high bench may lead to a high number of reversals of prior rulings. In historical perspective, the Court reversed itself on average about once each term. In the nineteenth century reversals were more infrequent, if only because there were fewer decisions to overturn. Notably, though, when the Court’s composition changes dramatically in a short period of time, or a pivotal justice leaves the bench, the Court tends to overturn prior rulings. That occurred after Franklin D. Roosevelt’s eight appointments and elevation of Justice Harlan F. Stone to the chief justiceship in the late 1930s and early 1940s. The Warren Court (1953 – 1969) was even more “activist” than the Roosevelt Court in reversing forty-five precedents. During Chief Justice Burger’s tenure (1969 – 1986), the Court gradually became more conservative, particularly in the area of criminal procedure. As its composition changed, the Burger Court also continued reconsidering precedents—though typically liberal ones—reversing a total of fifty-two prior rulings. Once again, an unsually high number of reversals occurred during the first few terms of the Rehnquist Court (1986-2005) due to its changing composition and move into more conservative directions with a majority demonstrating its willingness to reconsider liberal precedents with which it disagreed. The Rehnquist Court’s initial rush to overrule liberal precedents abated, however, as more moderate centrists came to command a majority due to Democratic President Bill Clinton’s appointees. Whereas in the first seven terms of the Rehnquist Court, twenty-five precedents were abandoned, none was reversed in the 1993 term (Justice Ginsburg’s first term), and after Justice Breyer (1994—-) joined the bench; as the Court’s composition stabilized, only fourteen precedents were overturned in the following eleven terms. Under Chief Justice John Roberts (2005——) (who previously clerked for Rehnquist and remains alive to criticisms of the reversal of precedents), the Court has been less inclined to straight out overrule prior decisions. Instead, the Roberts Court has been notably more inclined to simply narrow the continued application of precedents; or, strike down state laws but nevertheless uphold “as applied” virtually identical federal statutes, regardless of the obvious inconsistency and without squaring the two rulings.
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Still, some precedents do stand the test of time, regardless of changes in the Court’s composition. No one doubts (though, undeniably a few still do) the precedential value of Marbury v. Madison (1803), Gibbons v. Ogden (1824), Brown v. Board of Education (1954), Miranda v. Arizona (1966) or even Roe v. Wade (1973). Ironically, although Chief Justice Rehnquist sharply criticized Miranda and approved of the exceptions made to its mandate, when asked to overrule that decision he nonetheless reaffirmed its constitutional standing— binding both the states and the federal law enforcement agencies—because (even though still disagreeing with the decision) it had become a “cultural icon.” Neither the Rehnquist nor Roberts Courts were willing or unable to command a majority for overruling other prior rulings, like Roe v. Wade, with which they disagreed. Such precedents have been considered “super precedents,” “bedrock precedents,” or “super-duper precedents.” ***** In sum, the precedential value of prior rulings, as Justice Jackson in half-jest quipped, “are [largely but not entirely] accepted only at their current valuation and have a mortality rate as high as their authors.” Or, as Justice Alito (2006——) more recently observed, “Stare decisis is like wine. If it’s really new, you don’t want to drink it, it has to age for a while. If it’s really old, it is very valuable, or it has possibly turned to vinegar. There’s this magical period in between. It [is] not difficult for a judge to make the stare decisis inquiry come out however the judge wants it [to] come out.” *David M. O’Brien, Leone Reaves and George W. Spicer Professor, University of Virginia. This paper was originally prepared for and delivered before AJURIS, Associacao dos Juizes do Rio Grande do Sul, Porto Alegre, Brazil (November, 28, 2017).
LE PRÉCÉDENT EN DROIT FRANÇAIS Paul-Maxence Murgue-Varoclier
Docteur en Droit public Equipe de Droit Public de Lyon Institut d’Etudes Administratives
Analyser le«précédent» en droit français peut paraître paradoxal. Alors que le droit anglo-saxon reconnaît la règle du précédentobligatoire1, les pays de tradition romano-germanique, dont la France fait partie, seraient hermétiques au précédent et s’en tiendrait à l’observation de la règle écrite2. Le juge serait réduit à n’être, selon les termes de Montesquieu, que la «bouche de la loi»3. Il suffit, pour s’en convaincre, de lire les développements que certains auteurs consacrent à la question du précédent. Opposant les systèmes juridiques de tradition romano-germanique à ceux de Common law, ils considèrent qu’il existe «un décalage, pour ne pas dire un abîme entre [ces] deux systèmes»4. Dans les pays de Common law, le précédent se présente comme une règle de droit édictée sous forme générale par un juge suprême à l’occasion d’une décision rendue sur une affaire particulière et qui acquiert, pour l’avenir, force obligatoire5. D’une part, le précédent est une décision rendue par un juge 1.
2.
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Pour ces auteurs, le précédent obligatoire constitue la différence fondamentale entre les systèmes de Common law et les pays de tradition romano-germanique. Pour quelques exemples : A. L. GOODHART, «Precedent in English and Continental law», LQR, n° 50, p. 40 et s.; M. CAPELETTI, «The doctrine os stare decisis and the Civil Law: A Fundamental Difference or no Difference at All?» in Festschrift für Konrad Zweigert, Tubigen, 1981, p. 381 et s. P. GILIKER, «La force du précédent dans le droit anglo-saxon: l’exemple du droit civil anglais» in Le temps, la justice et le Droit, Pulim, 2004, p. 307; C. N. FRAGISTAS, «Les précédents judiciaires en Europe continentale» in Droit international privé et public. Mélanges offerts à Jacques Maury, t. II, Dalloz et Sirey, 1960, p. 139 et s. Montesquieu écrit que «dans le gouvernement républicain, les juges suivent la lettre de la loi» ou encore que «les juges de la nation ne sont […] que la bouche qui prononce les paroles de la loi, des êtres inanimés qui n’en peuvent modérer ni la force ni la rigueur»: MONTESQUIEU, Esprit des lois in Œuvres complètes, Pléiade, t. II, 1951, p. 404. Pour une analyse critique : P.HEBRAUD, «Le juge et la jurisprudence» in Mélanges offerts à Paul Couzinet, Université de Toulouse, 1974, p. 329. D. PUGSLEY, «Rapport britannique» in La réaction de la doctrine à la création du droit par les juges, Economica, 1982, pp. 98-99. Dans le même sens, H. LE BERRE, Les revirements de jurisprudence en droit administratif de l’an VIII à 1998 (Conseil d’Etat et Tribunal des conflits), LGDJ, 1999, pp. 25-45; pp. 57-69. D. TALON, «Précédent» in D. ALLAND, S. RIALS, Dictionnaire de la culture juridique, PUF, 2003, p. 1185. Dans le même sens: P. MALAURIE, «Le précédent et le droit», RIDC, 2006, p. 319; B. PAC-