Arguing for Changes in the Law
by James C. Schroeder and
Robert M. Dow, Jr.
(Litigation, Winter 1999, Volume 25 Number 2)
James C. Schroeder is a
partner, and Robert M. Dow, Jr., is an associate, in the appellate practice
group at Mayer, Brown & Platt in Chicago.
rings. The general counsel of a major manufacturing company is on the other end;
she wants you to handle the appeal of an important case that the company just
lost. She asks you to read the trial briefs and to get back to her next week
with your preliminary ideas on appellate strategy.
As you review the trial materials, you realize that the appeal
will not be an easy one. On one of the key issues in the case, there does not
appear to be any precedent directly on point; on this question, the court of
appeals will be sailing into uncharted waters. On another important issue,
things seem to be even worse: There is governing case law directly contrary to
the position you would like to argue on appeal.
What advice do you give your client about how to handle each
issue? How will you convince the court to make new law in favor of your
position? And what chance do you have of getting the court to change its mind
and abandon precedent?
Start with the obvious: It is easier to persuade a court to
make new law when it is considering an issue for the first time. This happens
more often than you might think. Future Supreme Court Justice Wiley Rutledge,
while still a member of the D.C. Circuit, once wrote that it is "surprising to
find how many appealed cases present issues not directly or exactly ruled by
precedent." Wiley Rutledge, "The Appellate Brief," 28 A.B.A. Journal at
251, 253 (1942). This is still true today; in our experience, many appeals
involve at least one issue not clearly controlled by existing case law.
A threshold question is how to frame the issue before the
court. Generally, you should not bite off more than your client needs to chew.
This may require some self-discipline — resisting the temptation to ask the
court to make a splashy, headline-grabbing ruling when a simple, incremental
change in the law will do the job.
Of course, there may be special circumstances that will make
looking for the headline the best strategy. For example, if the court in which
your case is pending has shown a predilection for bold, sweeping pronouncements
(because of its philosophy, politics or personality) or has suggested that it
would be open to doing so if faced with the issue presented in your case, you
may want to give the court a reason to do something dramatic. And there may be
extra incentive for your client to gamble on an aggressive stance (perhaps
arguing in the alternative for a more cautious approach) if the client is likely
to face the same question in future cases. Ordinarily, however, arguing for an
incremental change in the law will be the better course.
In fact, this is how legal evolution generally occurs. The law
has evolved over hundreds of years — occasionally in leaps and bounds, but far
more frequently in gradual, sometimes almost imperceptible, shifts. As Justice
Cardozo observed, changes in the law typically occur "inch by inch." Benjamin N.
Cardozo, The Nature of the Judicial Process at 25 (1921). Although the
changes, "as they were made in this case or that, may not have seemed momentous
in the making," the result years later often "has been not merely to supplement
or modify; it has been to revolutionize and transform." Id. at 27-28.
One advantage of incrementalism is the comfort that it gives to
courts. The reliance on precedent and hierarchy within the judiciary reflects an
inherent conservatism that counsels against seeking too much change too soon.
Judges are typically more comfortable with making modest changes in legal
principles — nudging the law slightly in one direction or another — than with
issuing broad pronouncements that portend a radical deviation from prior
precedent. This tendency is particularly important in an appellate court, where
several judges decide a single case. A judge proposing (or appearing to propose)
an incremental change of current rules is much more likely to be able to put
together a majority — and avoid being overruled by an en banc court or a higher
court — than a judge overtly suggesting dramatic deviations from existing law.
"[I]t is not unusual for a court to change the law without emphasizing its
departures from or reinterpretation of precedent; emphasis on continuity is
characteristic of common law lawmaking even when innovative." United States
v. Hollingsworth, 27 F.3d 1196, 1198 (7th Cir. 1994) (en
banc) (Posner, C.J.).
For these reasons, if the court has not considered the precise
question that your case presents, search for a close analogy from which the
court can push the law a bit along the path that you prefer, yet still feel
tethered in some sense to its own precedents. As the second Justice, Harlan
explained, "[t]he decision of an apparently novel claim must depend on grounds
which follow closely on well-accepted principles and criteria. The new decision
must take its place in relation to what went before and further [cut] a channel
for what is to come." Poe v. Ullman, 367 U.S. 497, 544 (1961)
(Harlan, J., dissenting). Similarly, if the position that you have staked out is
not too outlandish, look for out-of-state decisions or scholarly commentary
supporting it. You may find support for your position in traditional sources of
law with which the court will be familiar.
You should weigh a number of factors in deciding how best to
present your argument on an issue of first impression. First, think about the
court in which your case is pending. Intermediate appellate court panels are
often reluctant to take the law where it has never gone before. Supreme courts
and courts of appeals sitting en banc, on the other hand, establish new rules of
law on a reasonably frequent basis and are much more willing to plow new ground.
Indeed, a supreme court’s freedom to return to first principles if it wishes
means that it may not matter to that court that intermediate appellate courts
have resolved the issue at hand repeatedly and consistently. To cite two recent
examples, the United States Supreme Court held that there is no aiding and
abetting liability under § 10(b) of the Securities Exchange Act, Central Bank
v. First Interstate Bank, 511 U.S. 164 (1994), and that the federal
mail fraud statute does not cover government corruption cases that defraud
citizens of their intangible right to honest and impartial government.
McNally v. United States, 483 U.S. 350 (1987), despite decades of
unanimous contrary precedent on both issues in the federal courts of appeals.
Assuming that there is no Supreme Court holding in the way, a
federal court of appeals sitting en banc is similarly free to decide what the
law of the circuit will be. But there are important practical limitations that
make dramatic changes in the law less likely in a circuit court. F or one thing,
even if the Supreme Court has spoken only in dictum, lower courts often feel
compelled to follow it. As Judge Posner has written, especially
Reich v. Continental Casualty Co., 33 F.3d 754,
757 (7th Cir. 1994).
where it is a recent dictum that considers all the relevant
considerations and adumbrates an unmistakable conclusion, it would be reckless
to think the Court likely to adopt a contrary view in the near future. In such a
case the dictum provides the best, though not an infallible, guide to what the
law is, and it will ordinarily be the duty of a lower court to be guided by it.
Moreover, federal courts of appeals are somewhat circumscribed
by the precedents of other circuits. In deciding whether to adopt a particular
legal rule, courts of appeals generally bear in mind that it is not "prudent to
create a conflict among the circuits." RTC v. Chapman, 29 F.3d
1120, 1122 (7th Cir. 1994).
Know your Judges
In deciding whether (and how aggressively) to push for a change
in the law, it is important to know your court and know your panel. Some courts
have been notoriously eager to make new law in cases of first impression — for
example, by recognizing new causes of action or constitutional rights. The
California Supreme Court in the 1960s and 1970s and the Ninth Circuit Court of
Appeals in more recent years are good examples. Other courts have historically
been more reluctant to expand the law in new directions.
It will usually be easier to have a sense of the general
tendencies of your court and panel when you are in front of a supreme court.
Because the entire supreme court typically hears each appeal, you know the
composition of your panel from the beginning. (There are rare exceptions; the
Louisiana Supreme Court, for example, has eight justices, only seven of whom sit
on any given case.)
Intermediate appellate courts are often more difficult to
characterize as a whole; how the court is likely to react to a particular
argument frequently depends on which judges end up on your panel. Micro-planning
may help here, depending on the local practice. Occasionally, counsel can learn
early on which judges will decide the case. In the D.C. Circuit, for example,
the parties are told the panel members (and the argument date) when the briefing
schedule is issued. In other courts, the total number of judges may be small
(the First Circuit), or the case may be assigned to a particular division of,
say, four judges at the outset (some districts in the California Court of
Appeals). Either way, counsel will usually have a pretty good idea of which
judges will decide the appeal. In still other courts — the Fifth and Sixth
Circuits, for example — the names of the judges on the panel hearing your case
will be released days (or even weeks) before the argument. While this is too
late to matter for writing the brief, the information can help you prepare for
Knowledge of the panel’s identity may help you to decide
whether the panel would be receptive to a particular argument, or whether to
tailor your arguments to that panel. But you should use this information with
caution and judgment. Your argument will be quickly undermined if the panel sees
it as a transparent effort to pander to its predilections. And there is always
the danger that you have misjudged the panel’s likely views and put all of your
eggs in the wrong basket.
Remember, too, that cases of first impression place a premium
on providing the court with a clear path to the desired result. This means not
only that you must write clearly and logically (an asset in any appellate
brief), but also that you must explain — in simple, step-by-step fashion — the
reasons why the court should adopt a legal rule that it has not adopted before.
Begin by stressing the reasons why the existing rule was
created; as Judge Holmes taught, "a page of history is worth a volume of logic."
New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921). Follow
this with an explanation of why the new rule you are proposing is consistent
with, and makes sense in light of, existing precedent. And in cases where an
obvious alternative rule exists, explain why that option should not be selected.
When a party asks the court not only to make new law but also
to overrule existing law in the process, the task is even more daunting. Courts
are naturally reluctant to find fault with their prior opinions. Moreover, a
rather complex set of principles governs the circumstances in which it is
appropriate even to revisit earlier rulings. For these reasons, the advice of
one leading appellate advocate is worth repeating: "Insofar as overruling is
concerned, the answer is ‘don’t ask for it if you can possibly avoid doing so.’"
Robert L. Stern, Appellate Practice in the United States at 323 (2d ed.
The first thing to consider is whether it is essential
that the prior case be overruled for you to win. Perhaps the earlier decision
can be distinguished. All opinions "must be read in the setting of the
particular cases and as the product of pre-occupation with their special facts."
Freeman v. Hewit, 329 U.S. 249, 252 (1946), overruled in part
on other grounds, Complete Auto Transit, Inc. v. Brady, 430 U.S. 274
(1977). Maybe the facts in your case are sufficiently different from the facts
in the earlier case that the court will feel comfortable not following the prior
Or, maybe you can convince the court to limit the earlier
decision to its facts — the "polite formula for overruling." Miller v.
United States Steel Corp., 902 F.2d 573, 575 (7th Cir. 1990)
(Posner, J.). A court will sometimes resort to this so that it can avoid
admitting a past mistake.
As a last resort, take another careful look at the opinion that
presents the apparent obstacle, to be certain that the problematic issue was
actually decided. "Questions which merely lurk in the record, neither brought to
the attention of the court nor ruled upon, are not to be considered as having
been so decided as to constitute precedents."" Webster v. Fall,
266 U.S. 507, 511 (1925). As Judge Posner put it, "[a] point of law merely
assumed in an opinion, not discussed, is not authoritative." In re
Stegall, 865 F.2d 140, 142 (7th Cir. 1989).
If a prior case must be overruled for your client to prevail in
an appeal, be sure to ask explicitly for that relief, at least as an alternative
argument. If you do not, the court may decline to overrule its precedent because
you did not ask it to do so. See, e.g., Morehead v. Tipaldo, 298
U.S. 587, 604-05 (1936).
Recognize that there may be instances in which the court is
powerless to overrule a prior decision. In Wisconsin, for example, the
intermediate court of appeals cannot overrule, or even modify, one of its own
decisions; it is bound by those decisions until the state supreme court
indicates otherwise. Cook v. Cook, 560 N.W. 2d 246, 256 (Wis.
1997). Many circuits follow the rule that one panel cannot overrule an earlier
panel’s decisions; only the en banc court can do that. E.g., Murray v.
Cable Nat’l Broad. Co., 86 F.3d, 858, 860 (9th Cir. 1996). In
contrast, the Seventh Circuit permits a panel to overrule a prior decision of
another panel as long as the overruling opinion is circulated to the entire
court before it is issued and a majority of the court is not in favor of
deciding the issue en banc. 7th Cir. R. 40(e). But whether or not the
panel you are currently before lacks the power to overrule an earlier case, be
sure to raise the issue in your brief; otherwise, you may waive the right to
present the question to a court that does have the authority to do so.
The court in which your case is pending is also relevant in
another respect. If you are in the United States Supreme Court on a question of
federal law, or a state supreme court on a state law issue, virtually anything
is fair game — at least theoretically. The same is not true in other courts. If
there is a Supreme Court case on point, a court of appeals will follow it, no
matter how questionable that precedent might be in light of intervening Supreme
Court decisions. For example, the Seventh Circuit faithfully followed
Albrecht v. Herald Co., 390 U.S. 145 (1968), an antitrust
decision that "despite all its infirmities, its increasingly wobbly, moth-eaten
foundations …, ha[d] not been expressly overruled." Khan v. State Oil
Co., 93 F.3d 1358, 1363 (7th Cir. 1996) (Posner, C.J.). The court
observed that "the Supreme Court has told the lower federal courts, in
increasingly emphatic, even strident, terms, not to anticipate an overruling of
a decision by the Court; we are to leave the overruling to the Court itself."
Id. The court, nevertheless, added that the case it was bound to follow
"should be overruled" and even predicted that "[s]omeday … it will be."
Id. The Seventh Circuit proved to be correct in every respect: the
Supreme Court granted certiorari in Khan, overruled Albrecht, and
commended the court of appeals for adhering to what was at the time still
binding precedent. State Oil Co. v. Khan, 118 S. Ct. 275, 284
(1997) ("The Court of Appeals was correct in applying that principle despite
disagreement with Albrecht, for it is this Court’s prerogative alone to
overrule one of its precedents.").
If the court you are in can overrule the troublesome precedent,
you still must overcome the doctrine of stare decisis. That doctrine, as
the Supreme Court has explained, reflects "a policy judgment that ‘in most
matters it is more important that the applicable rule of law be settled than
that it be settled right.’" Khan, 118 S. Ct. at 284 (quoting Agostini
v. Felton, 117 S.Ct. 1997, 2016 (1997). But because it is a
"‘principle of policy’ … and not … an ‘inexorable command,’" Seminole Tribe
v. Florida, 517 U.S. 44, 63 (1996), stare decisis may give way
to a compelling argument that existing law is wrong, stale, or otherwise in need
Perhaps the most important factor as to whether a court may
change existing law is the source of that law. State and federal courts have
often noted that they are most willing to reconsider past rulings in
constitutional cases. See, e.g., Seminole Tribe, 517 U.S. at 63. This is
more than just rhetoric; from 1971 through 1992, the Supreme Court of the United
States overruled in whole or in part no fewer than 34 of its previous
constitutional decisions. Planned Parenthood v. Casey, 505 U.S.
833, 959 (1992) (Rehnquist, C.J., concurring in part and dissenting in part).
The frequency with which constitutional decisions are overturned reflects the
fact that, apart from the notoriously arduous process of amending a
constitution, there is no other way to correct mistakes in constitutional
When it comes to overruling common law precedents, the courts
have generally taken a flexible approach. On the one hand, given the
legislature’s shared authority over the shape of the common law, there are good
reasons for courts to defer to precedent, particularly in those areas in which
the legislature has frequently acted. On the other hand, the courts are
generally in control of the development of common law, and have a "duty to
develop the orderly evolution of the common law," Nunnally v.
Artis, 492 S.E.2d 126, 129 (Va. 1997), "in light of the changing conditions
and circumstances of society." Washington v. RTC, 68 F.3d, 935,
939 (5th Cir. 1995). This evolution usually occurs through a process
that is "inherently incremental in nature; the very genius of the common law is
that it proceeds empirically and gradually, testing the ground at every step.’"
Barnes v. Independent Automobile Dealers Ass’n, 64 F.3d 1389, 1394
(9th Cir. 1995). Within this conservative framework, however, the
common law is constantly evolving — sometimes by overruling prior cases —
because "the need for stability in law must not be allowed to obscure the
changing needs of society or to veil the injustice resulting from a doctrine in
need of reevaluation." Alvis v. Ribar, 421 N.E. 2d 886, 896 (lll.
By contrast, when
statutory interpretation is involved, stare decisis exerts a much more
powerful force against changes in the law. Judicial reluctance to reinterpret
statutory terms is rooted in the principle of separation of powers. When the
legislature has enacted a statute, it has drawn a line — both in what it has
said and what it has not said — that courts are reluctant to redraw. Like
expanding or contracting the reach of a statute in a case of first impression,
changing the interpretation of key statutory terms "amounts to an amendment of
the statute itself rather than simply a change in the thinking of the judiciary
with respect to common law concepts which are properly under its control.""
Froud v. Celotex Corp., 456 N.E.2d 131, 137 (Ill. 1983).
As a result, courts have been reluctant to preempt the
legislature’s prerogative to modify its own enactments, particularly in matters
involving contract or property rights where "stare decisis concerns are
at their acme." Khan, 118 S.Ct. at 284. In these circumstances, stare
decisis acts as a policy of judicial restraint in areas traditionally
reserved for legislative action. Those who desire a change in the law — in
particular, a radical change — are often implicitly or explicitly directed by
courts to their elected representatives.
The doctrine of stare decisis is thus a significant, but
not an insurmountable, obstacle. Overcoming that obstacle will involve
convincing the court that its prior decision is outdated, impractical,
dangerous, or just plain wrong. Here are some questions to ask in determining
how to accomplish this.
First, do the "lessons of accumulated experience," Khan,
118 S.Ct. at 284, indicate that current law has created confusion or spawned an
unworkable situation for those whose conduct it purports to regulate? If so, the
court may be forced to rethink its impractical precedent.
Second, was the prior decision poorly reasoned or wrongly
decided on its face? In this vein, it is worth investigating whether other
courts or legal scholars have criticized the decision, even if they were
powerless to limit or overrule it. In some cases, district and intermediate
appellate courts openly suggest that their judicial superiors take another look
at settled law. A half dozen opinions or law review articles on antitrust law
written by Seventh Circuit Chief Judge Posner or Judge Easterbrook, for
instance, will likely get the attention of the Supreme Court in a petition for a
writ of certiorari. See generally Khan, 118 S.Ct. at 281-84 (citing
articles and opinions by those two judges). They may also get the attention of a
sister circuit panel or en banc court faced with internal precedent to the
Third, does the prior decision reflect a plurality opinion,
evidence a badly fractured court, e.g., Seminole Tribe, 517 U.S. at
63-64, or include a particularly vigorous and persuasive concurring or
dissenting opinion? See, e.g., Khan, 118 S.Ct. at 280. If a concurrence
or dissent has presciently forecast events that were contrary to the hopes and
expectations of the majority who joined in the prior decision, this factor may
gain added importance.
Fourth, is the prior decision simply a remnant of an abandoned
doctrine that is good law solely because the court has not had specific occasion
to reconsider it? The Seventh Circuit’s decision in Felzen v.
Andreas, 134 F.3d 873 (7th Cir. 1998), illustrates this kind of
"inevitable" overruling. In Felzen, the court explained why certain prior
decisions — allowing some class action nonparties to appeal from adverse
decision — were no longer authoritative in view of subsequent decisions, and
then administered the coup de grace by "formally overrul[ing]" several
precedents, "[l]est doubt linger" as to their status. Id. At 874-75. The
Supreme Court recently granted certiorari in Felzen, __ U.S. ___, 119
S.Ct. 29 (1998); time will tell if the Seventh Circuit jumped the gun.
Fifth, have the facts supporting the prior decision changed, or
come to be viewed differently with the passage of time, so that the old rule can
no longer be justified? The most famous example of this concern carrying the day
is probably Brown v. Board of Education, 347 U.S. 483 (1954),
which "rested on facts, or an understanding of facts, changed from those which
furnished the claimed justifications for the earlier constitutional resolution[
]" in Plessy v. Ferguson, 163 U.S. 537 (1896). Casey, 505
U.S. at 863 (joint opinion of Justices O’Connor, Kennedy, and Souter).
Sixth, do the reasons for adopting the prior rule in the first
place still exist? "It is revolting to have no better reason for a rule of law
than that it was laid down in the time of Henry IV. It is still more revolting
if the grounds upon which it was laid down have vanished long since, and the
rule simply persists from blind imitation of the past." Oliver Wendell Holmes,
"The Path of the Law," 10 Harv. L. Rev. 457, 469 (1897).
Seventh, has the court’s personnel changed significantly since
the prior case was decided? As much as the courts (and the Supreme Court in
particular) insist that changes in personnel do not justify overruling
precedent, see Agostini v. Felton, 117 S. Ct. 1997, 2007 (1997),
appellate practitioners know that the practical reality is sometimes different.
Recent history offers a mixed bag in this regard. Many hoped that changes in the
Supreme Court lineup between Roe v. Wade, 410 U.S. 113 (1973), and
Casey, supra, would lead to a reversal of Roe; they were
disappointed when that did not happen. The Court’s Eleventh Amendment decision
in Seminole Tribe, supra, on the other hand, can probably be traced to
the departure of three justices who tended to vote together (Brennan, Marshall,
and Blackmun). The vote changes occasioned by their departure led to the
overruling of Pennsylvania v. Union Gas Co., 491 U.S. 1 (1989),
another Eleventh Amendment case decided just seven years earlier. And the state
courts are not immune from these changes either. Perhaps the most striking
example in recent years is the Texas Supreme Court, which has become more
hospitable to the arguments of business interests as the composition of that
court has changed. Of course, it is usually imprudent for a brief even to allude
to a change in a court’s membership, but it is nonetheless an important factor
for counsel to include in the calculus when assessing the likelihood of
persuading the court to overrule a prior case.
Eighth, has the general judicial philosophy embodied in the
prior opinion been eroded in subsequent years by other schools of thought?
"There are vogues and fashions in jurisprudence as in literature and art and
dress." Cardozo, The Nature of the Judicial Process at 58. Arguments that
might have been dismissed out of hand by judicial devotees of the Warren Court
may be welcomed by a new generation of judges who firmly believe in the
teachings of the law and economics school.
Ninth, who wrote the prior opinion? The reputation of the
authoring judge will undoubtedly affect the likelihood that a court will
overturn an earlier decision. The already difficult task of persuading a court
to jettison prior precedent will be made considerably more difficult if the
opinion under attack was written, say, by Learned Hand.
All these factors may help
you to show what is wrong with current law and why it should be changed; they
shed significantly less light on what ought to be substituted in its place,
however. In rare cases, it may be enough just to point out the manifest
inadequacy of the law as it stands. But your argument will be more likely to
succeed if it takes the next step and proposes something better. If the court is
to depart from an existing rule of law, it almost certainly will need to find a
new one. A step-by-step analysis of what that new (and presumably better) rule
of law might be will make it more likely that you can convince the court not
only that existing law is inadequate, but also that the new path you have
charted is promising enough to overcome the inertial force of stare
Whether you are asking an appellate court to overrule existing
law or to create new law on an issue of first impression, following some basic
rules will help your chances:
Good facts make an
enormous difference. Justice Jackson once explained that [i]t may sound
paradoxical, but most contentions of law are won or lost on the facts. The facts
often incline a judge to one side or the other. A large part of the time of
conference is given to discussion of facts, to determine under what rule of law
they fall. Robert H. Jackson, "Advocacy Before the Supreme Court: Suggestions
for Effective Case Presentations," 37 A.B.A. Journal 801, 803 (1951). If
you are representing a business that wants to change a rule of law that affects
it in a number of cases, you should choose the most sympathetic factual context
to advance the argument before an appellate court.
Use the facts to your advantage.
Recognize that the identity of the judge whose decision is
being appealed may well influence an appellate court. "[J]udges, like
humbler men, judge each other as well as the law." John W. Davis, "The Argument
of an Appeal," 26 A.B.A. Journal 895, 896 (1940). Appellate judges who
have been on the bench awhile develop a keen sense of the quality of the work
done by many of the trial judges in their jurisdiction. In most appellate
jurisdictions, there are a few trial judges whose rulings come to the appellate
court almost with a presumption of error, and a larger number whose decisions
are very difficulty to overturn because of a well-deserved reputation for
excellence. If your particular appeal comes from a judge who falls into either
category, that fact is likely to make a difference in your approach.
Be patient. And tell your client that she will need a good
deal of patience and persistence. The law does not change overnight. It may take
years before courts will adopt the principles that you are advancing; you may
propose several different approaches that courts reject before finally agreeing
with yet another alternative. Lawyers raising constitutional challenges to large
punitive damages awards argued unsuccessfully that such damages could be
reviewed under the Eighth Amendment, Brownin g-Ferris Indus. v. Kelco
Disposal, Inc., 492 U.S. 257 (1989), before eventually persuading the
Supreme Court to hold that the Due Process Clause limited a jury’s discretion to
award punitive damages, Pacific Mut. Life Ins. Co. v. Haslip, 499
U.S. 1 (1991). And it was several years later before the Court actually reversed
a punitive damages award as excessive on due process grounds. BMW of North
America, Inc. v. Gore, 517 U.S. 559 (1996).
Although Justice Holmes
believed that the value of older decisions was "mainly historical," "The Path of
the Law," 10 Harv. L. Rev. at 458, that is not always true. Sometimes,
there are seemingly ancient cases that have been forgotten but are still good
law. A court is more likely to agree with your position if it is consistent with
prior precedent, even if that precedent was decided in the nineteenth century.
And despite their respective vintages, a century-old decision of a supreme court
stands on a higher judicial plain than yesterday’s pronouncements of an
intermediate appellate court in the same jurisdiction. Indeed, a
long-established line of appellate court decisions can be undermined, and even
overruled, if you can show that the decisions are inconsistent with earlier
supreme court decisions. E.g., Cult Awareness Network v. Church of
Scientology Int’l, 685 N.E.2d 1347, 1351-53 (Ill. 1997), cert.
denied, 118-S. Ct. 1300 (1998).
Be sure to check old case law.
Decisions from other
jurisdictions. Restatement provisions, and law review articles can be valuable
in your effort to persuade a court that your proposed change in the law is
sensible and workable. But these authorities should not be used
indiscriminately. Judges have their likes and dislikes; some judges are known to
have great fondness for, or antipathy towards, decisions from particular
jurisdictions. Do your homework and cite sources that are likely to work.
Be careful in your use of authority.
Federal courts considering state law questions will generally give
short shrift to arguments that state law should be changed — that task belongs
to the state courts. E.g., Carlton v. Worcester Ins. Co., 923 F.2d
1, 3 (1st Cir. 1991) ("Particularly where, as here, suitors seek to
annul longstanding state precedent closely in point, they are hard put to
complain if a federal court, called upon, in effect, to overrule the highest
court of the state on a matter of state law, adopts a more deferential stance").
If you are faced with contrary state precedent in federal court, think about
asking the federal court to certify the question to the state supreme court, a
procedure that is permitted in over forty states.
If your case is in federal court, be cognizant of federalism
Some lawyers follow the kitchen-sink
theory of briefing; they argue every conceivable issue, reasoning that you never
know what a judge might find persuasive. On rare occasions, a lawyer may win a
case with the sixth or seventh argument in the brief; far more often, those
weaker arguments will reduce the chances of success. Especially when you are
asking for a dramatic change in the law, weak arguments will dilute the force of
your strong arguments. At best, your arguments will divert the court’s attention
from the change in the law that you are urging.
Delete weak arguments.
load requires them to learn about many different areas of the law but typically
does not allow them to become experts in any one subject. If your case involves
technical areas of law that the judges do not confront very often, such as tax
or bankruptcy, outline basic principles in your brief. Such helpful background
will make it easier for the judges to follow your argument and for you to
persuade them to make new law.
Remember that appellate judges are generalists.
Local knowledge is
important here. Some courts are hostile to amicus briefs; others welcome amicus
filings. Lay the necessary foundation, and then let the court’s friends explain
the societal implications of the troublesome precedent.
Use amicus briefs to explain the practical impact of existing
law and the broad reasons why the law should be changed.
Cases that raise issues of
first impression or require counsel to advocate overruling prior decisions are
often the most interesting and challenging ones. But they can also be the most
frustrating. And they will test your patience, particularly when you must
shoulder the often heavy burden of stare decisis from the trial court all
the way through to the highest court in the jurisdiction.
Because predictability and consistency are hallmarks of a
mature jurisprudence, the law often seems to change at a snail’s pace, if at
all. Arguing for changes in the law is therefore not easy work. But the law does
change over time — sometimes dramatically. And even unsuccessful efforts to make
new law serve the essential function of testing yesterday’s principles of law
against the needs of today’s society.
This Mayer, Brown & Platt article provides information and
comments on legal issues and developments of interest to our clients and
friends. The foregoing is not a comprehensive treatment of the subject matter
covered and is not intended to provide legal advice. Readers should seek
specific legal advice before taking any action with respect to the matters
"Copyright 1999 American Bar Association. All rights reserved.
This information or any portion thereof may not be copied or disseminated in any
form or by any means or downloaded or stored in an electronic database or
retrieval system without the express written consent of the American Bar