Volume 86, Issue 5
Articles
In this Article, Professor Shapiro addresses the question of how courts should treat precedent. He focuses on the category of “horizontal” precedent, specifically application of Supreme Court precedent by Supreme Court Justices. He begins by identifying three rough categories of scholarly views on the effect of such precedent: (1) the view that precedent should not or does not influence Justices on issues where they disagree with precedent; (2) the view that when Justices disagree with precedent, it should only be followed (or is only followed) if certain other conditions are satisfied; and (3) the view that Justices should, or always do, follow precedent even when they disagree with the result unless certain conditions are satisfied.
Having laid out this schematic, Professor Shapiro takes a decidedly Burkean approach to the problem, placing himself in the third category; he takes the position that a precedent being “clearly incorrect” is a necessary, but not sufficient, condition for setting it aside. Professor Shapiro asserts that constitutional meaning derived from text or original “public meaning” is distinguishable but not separable from judicial precedent. With this in mind, and looking to Justice Kennedy’s opinion in Patterson v. McLean Credit Union to guide his analysis, Professor Shapiro articulates two criteria that should be satisfied before precedent is abandoned: (a) “the precedent(s) were clearly wrong when rendered or had clearly become unsound in the light of experience,” and (b) “the error is significantly obstructing the achievement of generally recognized and important objectives, is obstructing the vindication of basic rights, or (more cautiously) is so inconsistent with later precedent that its rejection is required in the interest of coherence and predictability in the law.”
Having stated his criteria, Professor Shapiro imagines that he himself is a newly appointed Supreme Court Justice and applies these criteria to a hypothetical test case. Professor Shapiro engages in two alternate analyses applying his criteria, one which declines to apply the precedent and one which does. After considering each, he concludes that he would vote to follow the precedent, despite his personal dislike for the outcome.
Responses in See Also:
In this Article, Professor Neil Seigel attempts to conceptualize analytically the elusive concept of “judicial statesmanship.” Judicial statesmanship, in brief, is the quality of the judicial temperament that applies practical political and social wisdom to the process of adjudication in light of the enormous interests that depend on the results of judicial opinions. This attribute of judicial role has been described and advocated as essential by various Justices of the Supreme Court including Brandeis and Frankfurter; however, the concept has evaded attempts at analytic description.
It has, at best, been described by a hodgepodge of qualities and conditions such as: understanding the open-endedness of constitutional language; recognizing the enormous difficulty of the problems facing the Court and the limited experience of any individual judge; and advancing the need for law to keep up with the times. Professor Seigel approaches the problem of describing judicial statesmanship from a different framework—he locates judicial statesmanship in the need for legitimation of legal systems. In this framework, judicial statesmanship is a virtue that is essential to maintaining trust between the government and the governed, trust in the rule of law, and a spirit of “moderation” within the polity.
Thus, judicial statesmanship furthers two potentially conflicting purposes: (1) it expresses “social values as social circumstances change” and (2) it sustains “social solidarity amidst reasonable, irreconcilable disagreement.” When judicial statesmanship as a concept is approached in this manner, it becomes possible to identify judicial opinions as either statesmanlike or unstatesmanlike. Professor Seigel applies this rubric to two recent Supreme Court opinions—Parents Involved in Community Schools v. Seattle School District No. 1 and Gonzales v. Carhart—and argues that the majority opinion for the former exhibits the virtues of judicial statesmanship while the opinion in the latter case does not.
Book Reviews
In this Review Essay, Professor Stras considers two books on the judicial appointments process: Supreme Conflict: The Inside Story of the Struggle for Control of the Supreme Court and Confirmation Wars: Preserving Independent Courts in Angry Times. Both of these works attempt to describe the increased politicization and hostility in the appointments process and confirmation hearings of federal circuit judges and Supreme Court Justices over the last thirty years.
Professor Stras begins with a discussion of Supreme Conflict. He recommends this book as “a superb work of descriptive reporting” and touts it as essential reading for students of the Court—particularly for the wealth of “standout stories” it provides. Despite its virtues, Professor Stras finds that Supreme Conflict comes up short in its substantive legal analysis and that it seems at times that the author, Jan Crawford Greenburg, is unsure whether her reader is a legal academic or an average educated citizen. Stras writes, “Confirmation Wars is . . . more focused on a normative assessment of the appointments process,” making it an ideal companion piece for Greenburg’s work.
In Confirmation Wars, Benjamin Wittes considers four theories on the development of the appointments process. Wittes ultimately adopts a variant of the fourth theory—the appointments process has fundamentally changed because both conservatives and liberals increasingly “view the federal courts as an opportunity to entrench their preferred policy objectives”—and argues that the increase in politicization is proportional to the increase in the judiciary’s involvement with “political issues of the day.” After describing the situation as problematic, Wittes proposes a radical solution: create more cooperation between the Executive and Legislative Branches prior to the appointment and eliminate the confirmation hearings.
While Professor Stras finds Wittes’s basic theory of change in the judicial appointments process plausible, he believes that Wittes’s proposal is unworkable. According to Professor Stras, both of these works convincingly demonstrate that the judicial appointments process has become increasingly and overtly political, but neither succeeds in giving “a coherent account” of why. Here, Professor Stras offers his own analysis, and he concludes that a better understanding of the politics of judicial appointments will aid both scholarly inquiries into the normative foundations of this process and practical attempts to craft strategies for dealing with appointments.
Notes
This Note considers the doctrine of forum non conveniens in American courts following the Supreme Court’s decision in Piper Aircraft Co. v. Reyno. The discussion centers on Abdullahi v. Pfizer, Inc., a case brought by Nigerian plaintiffs against Pfizer in the Southern District of New York in 2002. The case concerned Pfizer’s allegedly tortious actions in undertaking experimental drug testing on Nigerian children without adequate safety precautions, resulting in injury or death to many children. Despite overwhelming evidence that Nigerian courts would be unwilling to hear the plaintiffs’ claims, the suit was eventually dismissed on grounds of forum non conveniens because “the vexation Pfizer would incur in pursuing discovery in Nigeria while litigating in the U.S. was ‘grossly disproportionate’ to any convenience the plaintiffs might experience by litigating in the U.S.”
This Note argues that such a result is not only inequitable but actually in conflict with the animating purposes of the forum non conveniens doctrine. After considering the Piper case, this Note explains why the test articulated in Piper is in fact more deferential to a plaintiff’s choice of forum than the Abdullahi opinion suggests and, in any case, should probably not be extended into cases such as Abdulllahi. In light of cases like Abdullahi, the balancing test of public and private interests that was articulated in Gulf Oil Co. v. Gilbert should be reworked so that courts can give greater consideration to the actual adequacy of the alternative forum to hear a plaintiff’s claims. A test that focuses on the adequacy of the alternative forum will prevent unjust results and promote greater consistency with the underlying purpose of the forum non conveniens doctrine.
The recent explosion of private-equity deals, in which private funds purchase corporations outright, has put increasing time pressure on corporate merger agreements. Such time-pressured deals jeopardize the ability of the target company’s board of directors to fulfill their fiduciary duty to shareholders to ensure that they obtain an adequate offering price. Furthermore, management of target companies is often involved on the buyer’s side of such deals, raising greater hazards of a breach of fiduciary duty by the target board of directors. One recent strategy employed to address these concerns is the “go shop” clause. Such clauses essentially allow the target board to solicit offering prices from other potential acquirers in order to test the market.
Go shop clauses also allow the target board to break their deal if they receive a better offering price within a specified time frame after signing the initial agreement. Under Revlon, Inc. v. MacAndrews & Forbes Holdings, Inc., target boards are required to obtain the highest offering price reasonably available for their shareholders. The go shop clause is problematic in light of Revlon for two main reasons: (1) go shop clauses are increasingly a feature of private-equity deals and (2) the existence of a go shop clause may provide a target board with a false sense that it has fulfilled its Revlon duties. This Note considers the potential problems with go shop clauses in light of the expansion of the board of directors’ duties of loyalty and good faith following Stone v. Ritter and the affirmation of the substance over form principle followed by the Delaware court in Louisiana Municipal Police Employees’ Retirement System v. Crawford. The Note concludes that under Delaware law, a board that implements a go shop clause “must actively solicit additional offers in good faith” in order to fulfill its duty of loyalty. Thus, target boards should approach go shop clauses cautiously and keep in mind that until they have actually utilized the go shop clause in good faith, they have not satisfied their Revlon duties.
