It has been my privilege and pleasure to teach a great many students the law over the years. While business law has been my forte, I have enjoyed forays into workers' compensation, evidence, constitutional law, legal writing, and beyond. Interlaced within these is a legal concept that is too often vexing for students. It is not so difficult to grasp the essence of the concept, but successful application requires a bit of dexterity that is an acquired taste.
The concept is stare decisis ("let the decision stand"). There is great value in predictability in the law. If the parties can predict outcomes, and approximate odds of success (or failure), they can make informed decisions and literally solve their own problems through negotiation, interaction, and cooperation. That drive for predictability is the easy part to grasp. We strive to decide today's case in concert with the way yesterday's case was decided. Judges follow the decisions previously rendered. That is the "common law" and is a tradition of British law that we inherited in America.
Students are more challenged by the friction between that legal maxim and the world of statutory construction. You see, workers' compensation and other issues have been addressed by elected representatives. These are statutory constructs. Statutes can change, and they can change the "common law." Thus, there is a friction, an inevitable conflict between the desire to respect the decisions of yesterday and to emulate their outcomes, and the potentially "moving target" of statutory construction. Comprehension is a struggle for some as they strive to begin their legal education.
It is understandable, and a great deal of patience is invested in repetitive explanations. Unfortunately, a fair number of lawyers never get the subtlety. Judges encounter those lawyers every day. One must respect their drive for uniformity and consistency, their passionate devotion to yesterday. But the unwavering deference to "precedent" is worthy of further analysis and consideration.
The example I use often is the decision of the United States Supreme Court in Dred Scott v. Sandford, 60 U.S. 393, 15 L. Ed. 691 (1857). In this decision, the highest court in the land, interpreted the law as those justices perceived it, and made conclusions regarding the possessory/property rights of humans over other humans. This is an infamous example of judicial interpretation that was a staple of high school history books for many years. It perhaps remains featured in those curricula today, though I have not ventured into such texts of late.
That is a decision of The United States Supreme Court. The "common law" absolutists in the crowd would perhaps tell you that lower courts must always follow decisions of such superior courts. And by "always," perhaps they would insist they mean "always." Absolutely. They might phrase it eloquently, and suggest neglect when a judge takes a view disparate to a decision of a higher court:
"This . . . correctly concedes that the . . . decision is contrary to Florida Supreme Court precedent . . . .. We lack authority to do that."
We, the lower court, can never disagree with the superior court. Or, perhaps we might? Intriguingly, Dred Scott and its support for slavery has not been expressly overruled. The Supreme Court has never returned to concede that Dred Scott was incorrect when drafted (it was), or at a minimum that it is not correct today (it is not).
Thus, Dred Scott is a decision of the highest court in the land. And it is coincidentally wrong. Some would say farcically so. But the absolutists might argue it should be followed, faithfully, and blindly. Justice, as they say, is blind. Should it be? Or should it be reasoned and rational?
In the law, we have tools that help us to evaluate decisional law from courts. We check citations and determine if a case has been overruled. That is when the same court or a higher court determines that a case is wrong or inappropriate for application. The court might determine it is wrong (overruled), inappropriate in the present instance (distinguished), or otherwise avoided.
But if you check on Dred Scott, there is no judicial overruling. There is distinguishing. There is suggestion that it is "superseded." You see, after Dred Scott was decided, the law in America changed. Thus, other courts have cited Dred Scott and noted the ratification of the Thirteenth (1865) and Fourteenth (1868) Amendments to the U.S. Constitution. See e.g. Oliver v. Donovan, 293 F. Supp. 958, 967 (E.D.N.Y. 1968). And yet, the United States Supreme Court has never returned to the Dred Scott decision.
How dare a mere District Court ignore the Supreme Court's decision in Dred Scott?!?!? Surely, the aggrieved (losing) party in Oliver appealed that trial court decision to the Federal Circuit and then the Supreme Court. Surely, that party did not acquiesce in the trial judge failing or refusing to apply Dred, a decision of the highest court?
Well, sure they did not seek appellate review. They did not argue that precedent was inviolable and absolute. You see, Dred is not the law in America today. The law changed. Certainly, there is the inclination to respect and follow the decisions of yesterday (precedent, "common law"), but let's be clear. Justice is not blind, nor deaf, nor dumb. It is the judge's job to look at the law today, and to analyze the facts of a case in light of that law. If a prior decision of another court has interpreted that self-same law, then that decision may be "controlling" or at least "persuasive." But not if the law has changed.
As I have noted, workers' compensation is a statutory system. It is governed by the law as created by the Legislature and as interpreted by the court(s). However, some judges decry the respect shown to those court interpretations. They insist that the analysis should be limited to the statute. They would demand we read section 440.02(32), Florida Statutes (Supp.1994), and that we ignore Vigliotti v. K-mart Corp., 680 So. 2d 466, 467 (Fla. 1st DCA 1996).
They believe that the legislature has the power to enact laws, as the elected representatives of the People. Some see the legislative process as superior to the decisions of appointed judges who interpret such statutes. I explain to my students the checks and balances of American government, the rights of people, the powers of various branches, and the balances that are thus created. No branch is superior, each is co-equal, defined, and constrained.
But the stare decisis fans would say no; they would exhalt the court's 1996 interpretation (Vigliotti) and decision over the statute itself. This posturing and positioning alone could keep a cocktail party conversation between two lawyers going for hours. There is friction between legislative and judicial function and authority.
Frankly, in America today, no one would ever cite Dred Scott in any context that even suggested it should be relied upon. It is superseded by the change in the law. The people of the United States, through their elected representatives, ratified the 13th and 14th Amendments. They ended involuntary servitude and established the equal protection of laws. These two are venerated, celebrated, and fundamentally altered the foundations of American law. Neither was created by a court. They are representational democracy shifts.
Is workers' compensation any different? This is a system that began its life slanted, not level. It is a statutory system that was voluntary for decades. Florida workers' compensation was misinterpreted by the courts early to require judicial defaulting in the direction of the injured worker. The sentiment came wrapped in various titles and descriptions, but it was what it was. What the sentiment was not (ever) was statutory. The emotional expansion of workers' compensation beyond the statutory definitions and creations was all from the appointed bench.
In the early days, there was not statutory definition of "arising out of." That an accident or injury must "arise out of" employment was required, but not defined. The courts created some difficult and tangled definitions. The Legislature changed that and adopted one. A statutory one. The Legislature also changed the slanted field and leveled it. The Legislature changed the fundamental, foundational law of workers' compensation, just as Americans changed their Constitution by amendment(s). And some would argue that court decisions from an era prior to those statutory changes are of no more merit today than Dred Scott.
Workers' compensation came to Florida in 1935. Since then the statutes has been amended notably in 1941, 1955, 1974, 1978, 1979, 1989, 1990, 1991, 1994, 2001, and 2003. Are Florida Supreme Court or District Court of Appeal decisions prior to 1994 controlling or even persuasive on the "arising out of" test for compensability? Or, does the fact that section 440.02(32), Florida Statutes (Supp.1994) did not exist matter to the appropriate analysis? Does the fact that the foundation changed in 1990 as to the level playing field matter?
The treatment of Dred Scott v. Sandford, 60 U.S. 393, 15 L. Ed. 691 (1857) seems to suggest and argue that the law can change. The lack of judicial devotion to that decision seems to suggest that even a decision of the Supreme Court of the United States might not be controlling precedent when the foundations change. In a reasoned approach to deciding the law today, perhaps . . .?
Following Dred Scott today would be preposterous. Such an argument would be as nonsensical as arguing that the Detroit Lions will eventually win the Super Bowl (or the PowerBall). Either way, the odds are exceedingly long. Lawyers would be well served to move beyond "but the court said," and instead give some analysis and consideration to "why the court said," along with "is the foundation today the same?" This is, in the end, a statutory system. One which is a "derogation" of the common law.
As such, arguments exalting the "common law," "precedent" and "stare decisis" while ignoring what the law says may lead to outcomes that are less predictable. While one might exalt the value of predictability in "stare decisis," in today's decision being similar to yesterday's, might one as validly expect that the plain language of the Legislature's statute would be given its plain meaning? Is one predictability somehow superior to the other?
Addendum:
Apologies to the Detroit Lions, their fans, the city of Detroit, its citizens, residents, and devotees. Any derogation of that/them was untoward and inappropriate. I am certain that they will, in fact, one day win the Super Bowl. However, precedent would suggest that perhaps . . . ?