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What is the scope of precedent? It is a fundamental question in American law that has proven difficult to answer with precision. As courts, especially the Supreme Court, have increasingly crafted long, often rambling, opinions, it has become more difficult for other courts to interpret such judgments. Adam Steinman’s recent article, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, offers a key insight and valuable contribution toward explaining how courts should apply prior precedents to new facts.

The basic distinction Steinman draws in understanding stare decisis is between the rules stated by the precedent-setting court and the results reached by the precedent-setting court. In focusing on results (what Steinman terms “inferential stare decisis”), a court justifying its present judgment must reconcile its holding with the outcome of every precedential court opinion. Steinman, in contrast, argues that courts should not be obligated to conform their decisions with the results of prior binding opinions, but rather must follow the rule(s) articulated by the prior court. This approach decreases the constraining effect of prior decisions in one way, but increases their constraining effect in another. Future courts are less constrained in that they are not required to reconcile their decisions with the mere results of earlier ones. But they are more constrained in that, where the precedent-setting court has stated a rule, the future court cannot simply point to factual differences between the two cases and disregard the rule entirely. It would need to articulate a distinguishing rule that justifies a different result.

Steinman focuses his discussion on two recent high-profile Supreme Court procedure cases: Wal-Mart Stores, Inc. v. Dukes and Ashcroft v. Iqbal. Both cases have been attacked as creating “bad law,” but Steinman contends that the problems those cases create presume a particular approach to stare decisis. Steinman’s argument is widely applicable to a range of substantive areas. And because you can simply read the article (Section II) to appreciate the careful analysis of the precedential components of the majority opinions from those two cases, I want to illustrate the value of his normative perspective by applying it to another highly salient opinion with a longer timeframe of application: Lawrence v. Texas. Whereas Steinman’s examples show the danger of using inferential stare decisis to magnify a decision’s precedential effect, Lawrence provides an example of courts using such an approach to give precedent an unusually narrow interpretation.

At the time the Supreme Court decided Lawrence in 2003, many thought it represented a sea change in protecting sexual liberty. From the perspective of the rights of LBGT persons in America, the symbolic effects were surely significant. Although the majority opinion by Justice Anthony Kennedy is not a model of clarity, there should be little doubt that laws like the Texas anti-sodomy statute were found constitutionally infirm. As Justice Kennedy wrote: “The question before the Court is the validity of a Texas statute… [It] furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual.” And yet, over a decade later, the types of stare decisis problems Steinman articulates are manifested in lower courts application of Lawrence to sexual liberty cases.

In cases involving minors, prostitutes, people engaged in BDSM relationships, and rape, courts have repeatedly allowed prosecutions under the type of anti-sodomy statutes Lawrence invalidated by implicitly adopting the theory of inferential stare decisis Steinman criticizes. For example, in 2005, in State v. Pope, a North Carolina appellate court rejected a Lawrence challenge to the state’s anti-sodomy statute. In that case, an undercover police officer asked Teresa Darlene Pope for oral sex in exchange for money (to which she agreed). Prosecutors charged Pope not just with solicitation of prostitution, but also solicitation of crimes against nature because the act agreed to was sodomy (oral sex). Pope pled guilty to the prostitution charge, but argued that Lawrence barred enforcement of the anti-sodomy statute. The court rejected Pope’s argument because it viewed the Lawrence holding as inapplicable to prostitution; therefore, it did not violate the Constitution to apply the anti-sodomy statute to “the solicitation of a sexual act it deems a crime against nature.”

The North Carolina court’s interpretation of Lawrence fits squarely into the situations that Steinman’s proposal avoids. The judge read Justice Kennedy’s proclamation in Lawrence from a results perspective. That is, if commercial sex was not at issue in Lawrence, then Lawrence does not prohibit using an anti-sodomy statute against a prostitute. However, if the court had simply followed the rule of Lawrence, it would have found that the anti-sodomy portion of the North Carolina crimes against nature law, which was founded upon historical animus infringing upon sexual liberty, is necessarily unconstitutional under the Due Process Clause of the Fourteenth Amendment. Under a correct understanding of Lawrence, the prostitution charge would be constitutionally permissible, but prosecution for violating the anti-sodomy law would not. Instead, states with anti-sodomy laws have continued to enforce those statutes in cases with facts distinguishable from those in Lawrence.

What Steinman has offered is a rubric for analyzing and criticizing questionable past applications of precedent and a tool for fairly and consistently applying precedent in the future. Because of its value, I wanted to show, in my brief writing here, its applicability well beyond the two instances he articulates. Indeed, I would venture to guess that many instances of misapplication of precedent known to you, the reader, would be better understood through the theoretical lens proffered by Steinman. In the end, the problems of stare decisis will not disappear if courts take Steinman’s suggestions seriously. However, the rule-based approach Steinman proposes would go a long way toward addressing the most substantial issues in defining the scope of precedent.

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Cite as: Corey Rayburn Yung, Distinguished Precedents, JOTWELL (April 4, 2014) (reviewing Adam N. Steinman, To Say What the Law Is: Rules, Results, and the Dangers of Inferential Stare Decisis, 99 Va. L. Rev. 1737 (2013)),