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Litigation Journal

Spring 2024 | Joy


Robert E Shapiro


  • Much of our law has its roots in a vigorous, clear-sighted view of the past and its effect on the present. 
  • Too frequently, the Court tends to view its own understanding, or its own ideological imperatives, as paramount.
  • The common lawyers viewed precedents as existing to instruct as well as decide.
  • Common lawyers understood implicitly that irruptions in the law can be harmful.
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“The past is never dead. It is not even past.” At first glance, William Faulkner’s curious aphorism could seem to be a spiky riposte to those, Paul McCartney among them, who would “believe in yesterday.” It at least sounds a cautionary note about how we think about the past. Wistfulness about days gone by, like its near-cousin regret, may be soothing and characteristically human, but it can obscure and hinder one’s view of present-day life and the past’s role in it. There is an ever-present danger that one’s vision of the past, and the choices once presented, may be less clear-sighted than is often appreciated. Freighted as it is by emotional responses and the consequences of earlier choices that may now incorrectly seem to have been inevitable, hindsight is seldom 20/20, and its distortions can be devastating. Clouded memories, just like ignorance of the past, can easily degrade one’s present thinking, often hobbling one’s ability to meet intelligently the challenges of today’s world.

Lawyers are hardly exempt from the risk of failing to see the past properly or to attend carefully to its present-day impact and lessons. Newly minted lawyers sometimes discount the importance of prior experience in addressing present challenges. Seasoned practitioners can frequently find themselves indulging in a loopy nostalgia providing poor guidance for today’s problems. Who has not heard an older litigator reminiscing about some bygone age, for example, when disputes were supposedly less cutthroat and more gentlemanly and clients less parsimonious and demanding? They tend to rate this earlier time, if not exactly a trial lawyer’s utopia, the best of all possible litigation worlds, beggaring by comparison a current world replete with angularities. What these dreamlike visions omit is that, whatever the virtues of any such past, they existed in a world in which only a privileged few were even permitted to participate and others different in race, class, or gender were excluded. As has been aptly noted, “the good old days” benefit from a bad memory.

Litigators especially should know better than to treat the past by ignoring its continued impact or lapsing into mere whimsy, misapprehending both the past and present-day realities. Litigation is in many ways a confrontation with the past. Not for nothing does your brief have an obligatory “Background” section, which at its best will be no bland recitation of earlier events, but an up-to-the-minute, persuasive re-telling of how bygone circumstances should be understood now. So, too, a trial lawyer’s opening statement will do more than just recount what is said to have occurred; it will tell a vivid, compelling story that will engage the jury and its sympathies and make for a positive verdict and concrete results today. Sound litigation presents a re-enlivened past in a manner and perspective relevant for present purposes and one that is impactful for life going forward.

Common Law vs. Political Theorists

At an even more fundamental level, much of our law has its roots in a vigorous, clear-sighted view of the past and its effect on the present. A critical characteristic of the common law was its present-day insistence on neither forgetting nor incorrectly understanding what had been seen as true previously, which was vital for an understanding of our present. Its wisdom lay in a belief in immutable principles of conduct inherent in all human life, which could be divined only by those who were steeped in the learning of the past while still alive to present circumstances.

According to the common law, the decision-making in earlier cases was presumptively sound but needed not so much change as greater understanding and elaboration. Older holdings were mostly deemed right for their specific purposes but were necessarily so fragmentary that the fundamental rules always remained incompletely grasped. Earlier decisions addressed the specific circumstances of a particular case amid the infinite variety of interactions present in everyday life and needed to be improved through both deep reflection on that earlier thinking and the inevitable encounter with the realities of the present. For that reason, the common law was believed to have perfectly assimilated the past and the present, each informing the other, with progress coming not so much in the form of something wholly new, but in a better, more robust appreciation of what always was and continued to be most central to human life and society.

Thus, the characteristic mode of the common law was bottom-up, finding the essential legal principles in the multiplicity of circumstances, made clearer through rumination on the vast store of earlier decisions and the manifold circumstances of present cases. It contrasted with the more top-down thinking of political theorists, whose ideas were based more on a priori reasoning and various programmatic purposes, showing less reliance on, even respect for, the detailed lessons of the past. The new, more rational way was to be impressed upon judicial decision-making through the imposition of legal codes and similar devices. Where the common law was inductive, using the multiplicity of past decisions to decide present disputes, the theorists wanted to be deductive, using more abstract thinking about law and legal principle to dominate or determine present-day decision-making.

The conflict between the two approaches was, and is, palpable. If the common law seemed to the theorists too plodding, conservative, and lost in the weeds, the theorists seemed to the common lawyers too quick to discard and too easily given to misunderstand the learning available from the very variety of the past, wrongly favoring what was novel and unified, which would ultimately prove simplistic and defective. For this reason, the common lawyers whom Lord Coke championed and the activist liberal thinkers who rallied around Sir Francis Bacon almost came to blows at the end of the 16th and the beginning of the 17th centuries. To figure out how to reconcile the two approaches, it took the genius of William Blackstone, whom the founders then relied on to invent a system of justice that comprised both an overarching theoretical structure in the form of our Constitution and common-law decision-making based on the “cases and controversies” that arose day by day. In this blend of theory and practice, their different views of the past sat in an uneasy alliance.

Further complicating the matter, there later arose the idea about lawmaking and the law that they necessarily “evolved” amid ever-changing circumstances. This perspective views the past as present only as the seed of current thinking, which is believed to have advanced to a better place based on scientific progress and the sounder modern principles it has engendered. This is different from but has affected both of the other, earlier forms of jurisprudence. In this view, pace the common lawyers, past decision-making was not just incomplete, but rudimentary, needing to be enlightened by newer principles informed by better knowledge. Prior theorizing, meanwhile, also needed to be improved upon, if not discarded altogether, based on historically generated improvements revealing what could not be understood before. Such evolutionary approaches to the common law and constitutional theory show up repeatedly in contemporary analyses of jurisprudence, most noticeably in the form of the “living constitution” approach to Supreme Court decision-making.

Philosophy and Precedent

Each of these three ways of thinking about the law is likely to promote a different attitude toward precedent. For the common lawyers, the characteristic attitude was one of a search for principle, humility in the face of the past, and prudence in making any present decision. It was critical to acknowledge and conform, or at least reconcile, one’s thinking to earlier decisions, to uphold a principle of stare decisis, “to stand by the decisions.” Earlier precedents were not just “on the books,” as it were, but in some way indispensable, if not exactly authoritative. They could not claim to be a complete presentation of the law—they were too rooted in particular circumstances of parties, time, place, and events—but they were not to be discounted as mere outdated artifacts either. They were part of the larger fabric of the law to be deeply considered for their presumed insight into those elusive fundamental principles, deserving careful study to understand what motivated some equally serious decision-maker to choose as he did.

What was past was still our present, and a decision-maker humbled himself in the face of those who went before. And, while at times there may have been a risk of lapsing into mere reverential devotion to past rulings, the risks of this, and its effects, were mitigated by both the narrowness of the earlier holdings, which did not extend beyond the individual dispute, and the distinctive characteristics of the new dispute, which was similarly circumscribed. Meanwhile, one benefited from the study of the principles that showed themselves in those earlier decisions. In this way, careful jurists were thought to be engaged not in blind adherence to some antiquarian rule of law but committed to learning from the thinking of others, while considering its relationship to the present controversy.

Top-down theorizing necessarily tends to be less respectful of precedent. In its best form, it will always consider the sense in earlier pronouncements, but it is difficult to resist the tendency to prefer intellectual purity, which may be less given to, and may overwhelm, any such deference to what has been decided previously. Precedent easily appears to be not a guide, but an obstacle, to the high-minded, and sometimes even high-handed, thinking of the present, which is to be imprinted on the law regardless of earlier conclusions. In this, it may get an assist from the evolutionary approach, which views precedent as at best preliminary and useful only as it helps explain what led to present thinking, not something to be preserved or to be allowed to control current decision-making, given the presumption of a now-superior knowledge.

Consciously, and more often unconsciously, all of these currents of thinking about the law have shown up in the decision-making of the U.S. Supreme Court almost since its inception. But recent decisions have given us some very striking demonstrations of top-down judicial theorizing. In Dobbs v. Jackson Women’s Health Organization, for example, Justice Alito applied his a priori constitutional analysis to a body of law that, since Roe v. Wade, had worked out in almost exhaustive detail the various social and individual issues surrounding the topic of abortion. In an almost common-law manner, that body of decisions had struck a careful, if not always perfect, balance among various, competing interests, teasing out the fundamental principles the courts, and society, were to follow. The new approach, in an instant, brushed this learning aside and set the entire matter adrift legally, presaging perhaps another 50 years or more of renewed judicial analysis upon new foundations. The same might be said of the Harvard College and University of North Carolina affirmative action decisions, which rejected nearly 45 years of precedent in favor of a different theoretical point of view regarding the role of race in college admissions, and society generally.

Whatever one thinks of the specific outcomes of these cases, it is striking how little the decision-makers seem aware of the risks of their top-down analysis. In both instances, the Court has theorized in the name of “originalism” about what may be a fundamentally distorted conception of what once was, notable for its consistency with certain current political preferences rather than historical fact. See Robert E. Shapiro, Dobbs-Smacked, 49 Litigation 58 (Winter 2023). It could even be said to have indulged in a McCartney-style wistfulness about the past, an unwarranted belief in some earlier time that better epitomized the good while disparaging the further understanding of the intervening years, believing its own thinking, informed by “progress,” just clearly superior to anything available in the old.

In the service of its intellectualized approach, the Court seems to have developed new formulations for the consideration of precedent seemingly created for the circumstances rather than from anything embedded in American jurisprudence generally. In the process, the Court has forgone those lessons available from the approach of common-law jurisprudence. It no longer seems to be looking and striving for a better understanding of what, in the precedents, represented a thoughtful consideration of the fundamental issues and how those past decisions might inform the present. To be sure, the earlier decisions ought not to have been given blind reverence on the basis of age alone. But they ought not to have been simply discarded, based on the supposedly superior theorizing or current thinking alone, either.

Even (or particularly) in the pursuit of a better present, the very humility of the common lawyers would seem preferable. Too frequently, the Court, whether ruled by liberals or conservatives, tends to view its own understanding, or its own ideological imperatives, as paramount. As noted, the common lawyers viewed precedents as existing to instruct as well as decide. They were not mere obstacles to one’s present thinking to be overcome without fair consideration. They prescribed an honest confrontation with past thinking, recognizing that the earlier decision-makers had their reasons too. And while the authority of the precedents necessarily did not extend beyond their facts, they were not irrelevant to new ones either.

And, it might be added, prudence always reigned. Common lawyers understood implicitly that irruptions in the law can be harmful, particularly if not theoretically justified and even where they may be. What seems best can indeed drive out the good, obscuring rather than revealing the fundamentals of the law or leaving the law untethered to anything permanent or even lasting, and it may do both. The common lawyers showed us how the best form of jurisprudence can be a slow, methodical one where principles are derived deliberately, carefully. Only in that way might we ensure that the past, which is still present, can provide for a sounder future hereafter.

Robert E. Shapiro can be reached at [email protected].