What is the functional effect of overturning precedent? Background On occasion, the Supreme Court overturns precedents in part or in whole. This means that a previous ruling (or part of a ruling) from the supreme court that once had stare decesis no longer does, and no longer has the force of law. It is as if that part of the law no longer exists. Question I was curious about the big picture long term ramifiactions of overturning precedent. Once precedent is overturned, what happens to the other laws that cite the overturned portion, or overturned case? And does this effect cascade, i.e. do cases that cite cases that cite a case overturned in whole or in part also get overturned?
When the US Supreme Court "overturns" a precedent, it does not usually mean that every case which previously cited the older holding instantly vanishes or is upset. Indeed, often the older case is not truly overturned, but "distinguished", meaning the circumstances of the new case are different enough that the old rule does not apply. But, at least in theory, a case exactly similar to the old one would still follow the old rule. Sometimes such "distinguishing" cases pile up until nothing is left of the old rule. Even when one case overturns an earlier one more dramatically, it may not be instantly total. For example, West Coast Hotel Co. v. Parrish (1937) directly overturned Adkins v. Children's Hospital (1923) and by implication Lochner v. New York (1905) But the tide had started to turn against Lochner some years earlier in Nebbia v. New York (1934), and Lochner continued to be cited favorably in some cases until United States v. Carolene Products Co. (1938). In Lincoln Federal Labor Union v. Northwestern Iron &amp; Metal Co (1949) Justice Black (appointed 1937) wrote that the Lochner line of cases had been "repudiated". A more dramatic case of an overturned precedent was West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943) (the 2nd flag salute case) which directly ruled the exact opposite of Minersville School District v. Gobitis, 310 U.S. 586 (1940). The membership of the court was largely the same, and the time lapse quite short. The Court essentially changed its collective mind, largely adopting the view of the dissent in the earlier case. Another example of an extreme reversal is Dred Scott v. Sandford (1857), which denied that any black could be a US citizen. This was overturned by the outcome of the US Civil War, and the 13th, 14th, and 15th Amendments. In general when an earlier case is overruled, the change is not retroactive. Old cases are not undone. But new cases will be less likely to cite the overturned case (except possibly as a bad example), and it will no longer be considered good law to mandate a decision in a lower court. This is particularly true if several new cases, over a period of time, follow the new rule or principle.
There is one context where this does happen. Common law judges have direct contempt power. This means that while a judge is in the courtroom presiding over a case, the judge can summarily punish someone with incarceration and/or a fine without a trial for &quot;contempt of court&quot; because the judge has personally observed what has happened. Contempt of court encompasses types of disorderly conduct that wouldn't otherwise be criminal conduct. In other contexts, the judge is just one more witness and would not be assigned to handle the case. so you can only get &quot;non-witness judges&quot; from out-of-state or another region. The lawsuit hasn't begun yet, and all of the possible, local judges saw it happen. As a practical matter, this is basically impossible. But there are procedures in cases where large numbers of judges a conflicted out of a case, for example, to get a judge from the next county over or another part of the same state.
The question should not include France and Germany, and should be limited to common law jurisdictions that are similar to India, because the function of judges differs starkly between adversarial vs. inquisitorial systems. The adversarial model pits two parties against each other, with the judge serving as the decider (of law, and perhaps of fact). The parties can offer witnesses, who can be compelled to respond to questions, and the attorney asking the question gets to control the question asked (subject to a possible objection by the other party, to be ruled on by the judge). The judge can rule on requests (which are not questions) i.e. petitions by either party. Otherwise, the judge sits there more or less mute, soaking up the argumentation being presented. Appellate proceedings are somewhat special in that the justices may address questions to the attorney, in order to better understand the logic of the proffered argument. The burden is on the attorney to make the case. There is no direct burden on the justice to &quot;make a case&quot;. The &quot;court of public opinion&quot; may be relevant in a jurisdiction where the justice is an elected office or is appointed for limited time. Or, the contrary opinion of a higher court may have some influence on a justice's rulings – this is not the case with a Supreme Court. In other words, it would be highly dysfunctional within the adversarial system for a party to be allowed to interrogate a judge. Formal petitions are allowed, as long as you follow proper form.
The Constitution does not state your opinion of SCOTUS's job, instead it just says that there shall be one supreme court with judicial power, and it says what kind of cases are within the jurisdiction of that court. Thus The Constitution does not mandate whether rulings will adhere to the doctrine of stare decisis, will be based only on a narrowly literal interpretation of The Constitution, or will be based on a general sense of justice. The Constitution also does not say anything about the rules of that Supreme Court, therefore the court is free to set its own rules, and to allow or to not allow amicus briefs. Many points raised in amicus briefs fall on deaf ears, sometimes because they are based on non-shared legal assumptions. You can read a very brief summary of the over 140 amicus briefs in this case here. If you read various SCOTUS opinions over the past 225+ years, you will see that the court does make reference to fact, not just statements of the law and constitution. This brings it well within the scope of &quot;potentially relevant&quot; to determine some fact. The lawyers get to argue how facts relate to legal conclusions, but the basic fodder for any legal decision is some set of facts. The specific briefs you mentioned are: Pro-Life Obstetricians and College of Obstetricians. The latter's argument is self-summarized as Amici’s position is that laws regulating abortion should be evidence-based, supported by a valid medical or scientific justification, and designed to improve—not harm—women’s health Pro-Life Obsetricians' position is self-summarized as support for a law that rationally furthers Mississippi’s interest in protecting women’s health from risks posed by later- term abortions, which are now well established in the literature These statements refer to interpretive doctrines previously established by SCOTUS, but not literally expressed in The Constitution. In US v. Carolene Products Company, 304 U.S. 144 introduced concepts of constitutionality (not literally stated in The Constitution) whereby cases could be reviewed either with &quot;strict scrutiny&quot; for protection of Constitutional rights or else discernment of a &quot;rational interest&quot; in government taking a certain action. Either of these kinds of judicial review require a comparison of law to &quot;the facts&quot;. Hence &quot;the facts&quot; can be legally relevant.
It's happened before in real life. Here is a 1994 article describing an Illinois criminal trial where defense counsel pulled the old switcheroo and sat a different person with him at the defense table instead of the defendant. The defendant, instead, sat somewhere else in the courtroom. After a witness misidentified the perp as the person at the defense table (not the defendant), the judge directed a not-guilty verdict to settle the case but sanctioned the defense attorney instead. The appellate and state supreme courts upheld the sanction (by a one-vote margin in both cases) but dissenting opinions noted counsel and defendant technically broke no rules. From the article: The dissent said Mr. Sotomayor's intent was only to show the unreliability of the prosecution's witness. Moreover, seating a client at counsel's table is customary but not required. Nor is a lawyer obliged [...] to help a witness make an identification. Also, here is a similar but not duplicate question.
How deterministic is the legal system? It depends. And less than we might wish. It depends on the case. How complex is the fact pattern? How strong is the evidence? How clear is the law? How compelling are the legal precedents? Questions of that nature. The only generalization I might make would be that "lower level" cases seem more deterministic than "higher level" cases. By higher level, I mean those heard by a supreme court making constitutional decisions. Here is a web site that has created a prediction market out of supreme court cases. Many have written on this topic. Read this answer. It is an excellent treatise on the subjectivity of the legal system. Written by a real attorney. Read this answer too. My advice: If you seek a deterministic system, don't look to the legal one.
Because they are only apparent with hindsight The judge writing the judgement does not decide what is dicta and what is obiter - that is for some future judge considering a different case and deciding if they are looking at a binding (dicta) or persuasive (obiter) precedent. First of all, the vast majority of cases follow precedent; they do not set it. If you are trying to disentangle dicta and obiter then you are usually looking at the case of an appeal, not a trial judgement. Most trials turn on the facts, not precedent-setting points of law - usually, there is no dispute about the law at all. Even then, most appeal decisions don't set a precedent either and sink into obscurity until at some point in the far future when a lawyer doing research on a particularly tricky case has an &quot;ah-ha&quot; moment and says &quot;Look at what Justice Bozo said in paragraph 365 of this 56 page judgement about a tangentially related issue between different people at a different time in a different place - I need to spin this as dicta.&quot; Meanwhile, the lawyer on the opposite side has a different precedent from a different case that contradicts this one - one of them must be wrong. So a trial judge faced with this paradox has to resolve it; they don't get to say &quot;this is too hard&quot;. Basically they have 2 methods of doing so: The decide that one (or both) are obiter and make the decision based on the precedent that remains. They decide that both are ratio and write a judgement that they know has to be appealed because they have to follow both precedents and they can't. At least in Australia, this is becoming more and more common. The judge basically says &quot;I have two conflicting binding precedents, I pick this one for [reasons]. Now go off to the Court of Appeals to see if I got it right. I look forward to finding out.&quot; Of course, the winner isn't going to appeal and it may not be in the loser's commercial interest to do so. So maybe the question just gets kicked down the road for some other poor bloody judge to have to deal with.
There has been lots of U.S. Supreme Court action in patent law, which has collectively mostly weakened patent law, with some exceptions, although there has been little major patent legislation since 2011. (A background report for Congress from the Congressional research service can be found here.) Sandoz Inc. v. Amgen Inc., the U.S. Supreme Court rebuffs the Federal Circuit on a patent law issue related to patent claims in products (basically drugs) biologically similar to products subject to an existing patent making it harder to &quot;puppy guard&quot; such a patent. Impressions Products, Inc. v. Lexmark Int'l, Inc. Reversing the Federal Circuit to weaken the rights of patent holders, the U.S. Supreme Court held that the first sale doctrine terminates all patent rights in an item, both in the case of sales in the U.S. and sales outside the U.S., even if the contract of sale purports to reserve patent rights in that particular item produces using the patent. TC Heartland LLC v. Kraft Foods Group Brands LLC In 1990, the Federal Circuit held that due to an amendment to the general venue statute that patent lawsuits could be brought in any district that has personal jurisdiction over the defendant. This gave rise to extreme forum shopping by patent trolls with the Eastern District of Texas arising as a very plaintiff friendly venue in which many patent infringement cases were brought, despite it having only minimal contacts with the patent holder. This 8-0 decision overrules the 1990 decision of the Federal Circuit and holds that the 1957 decision of the U.S. Supreme Court that patent lawsuits may be brought only in the state where a defendant is incorporated remains good law. SCA Hygiene Products Aktiebolag v. First Quality Baby Products, LLC the equitable doctrine of laches cannot be used to bar the recovery of patent infringement damages incurred within the six year statute of limitations; this follows another recent ruling that laches does not bar the recovery of damages for patent infringement incurred within the three year statute of limitations. Samsung Electronics Co. v. Apple, Inc. In the case of a multicomponent product, the relevant “article of manufacture” for arriving at a [35 U.S.C.] §289 damages award need not be the end product sold to the consumer but may be only a component of that product. Alice v. CLS Bank, Int'l., prohibited software that generically applied an abstract idea that is not otherwise patentable, have made it dramatically more difficult to obtain patents, particularly the subset of patents called &quot;business method patents&quot; which include most software patents. In January of 2004, only a little more than 2% of patent applications were rejected (on Section 101 grounds which governs what is patentable). By July of 2015, that percentage is about 15%. Before Alice in July of 2014, about 31% of business method patent applications were rejected on Section 101 grounds (already a major increase from 2007 when the U.S. Supreme Court adopted a more expensive definition of &quot;obviousness&quot; under Section 101 for patent law purposes in KSR International v. Teleflex (see below), and 2010 when the U.S. Supreme Court in Bilski v. Kappos (see below) articulated a new (and functionally more restrictive) legal standard for granting software patents (although not as restrictive as the federal circuit case it reviewed which is linked), while affirming that software patents could still be obtained). After Alice, 82% of business method patent applications were rejected. Limelight Networks v. Akamai Technologies liability for inducing infringement could not exist when there was no direct infringement (the conduct in question involved part of a patented process being carried out by one party, who allegedly urged customers to carry out the balance of the patented process themselves, so that no one person infringed) Nautilus v. Biosig Instruments the Court rebuked a standard for what kind of patent description was excessively vague that was absurdly indulgent to the patent applicant. Octane Fitness, LLC v. Icon Health &amp; Fitness, Inc. (2014) (unanimous) and Highmark Inc. v. Allcare Management Systems (2014) (unanimous) (the Federal Circuit had set too high a standard for the recovery of attorneys' fees for frivolous patent prosecutions) Medtronic v. Mirowski (2014) (unanimous) (burden of proof wrongly placed on someone other than the patent holder) Association for Molecular Pathology v. Myriad Genetics (2013) (unanimous) (invalidated patents on naturally occurring DNA sequences) Mayo Collaborative Services v. Prometheus Laboratories, Inc. (2012) (unanimous) (district court's factual findings made clear that drug monitoring device patent merely restated a law of nature and was invalid) Caraco v. Novo (2012) (unanimous) (alleged infringers right to bring counterclaims expanded) Global-Tech v. SEB (2011) (8-1) (added knowledge of infringement element in claim for induced patent infringement) Bilski v. Kappos (2009) (unanimous to reverse, complicated holding as to extent of new law) (analysis to determine validity of business method patents tightened, dramatically narrowing their availability) Quanta Computer, Inc. v. LG Electronics, Inc. (2008) (unanimous) (disavows Federal Circuit doctrines allowing patent holders to limit use of patented device after a first sale) KSR v. Teleflex (2007) (unanimous) (tightened standard for obviousness in order to qualify for patent protection) MedImmune v. Genentech (2007) (8-1) (allows for contests of patent validity without risking liability by infringing patent prior to legal ruling on question) Microsoft v. AT&amp;T (2007) (7-1) (U.S. patents laws don't have extraterritorial application; U.S. patent law doesn't apply to software copied abroad and not repatriated.) eBay Inc. v. MercExchange, L.L.C. (2006) (unanimous) (sets higher standard for obtaining injunctions once infringement is established) Merck KGaA v. Integra Lifesciences I, Ltd. (2005) (unanimous) (exemption from patent infringement applies to use of patented drugs for narrow purposes of research associated with FDA drug approval process) Bowman v. Monsanto Co. (2012) (unanimous) (first sale doctrine does not invalidate ban on reproducing crops grown with patented GMO seeds) Kappos v. Hyatt (2012) (unanimous)(expanding ability of applicant denied a patent to challenge the denial with additional evidence) Microsoft Corp. v. i4i Ltd. Partnership (2011) (unanimous) (presumption of validity of patent continues to apply during patent re-examination process conducted by PTO). Stanford v. Roche (2011) (a case over who is entitled to a patent between two potential patent holders) Gunn v. Minton (2013) (unanimous) (overruling Federal Circuit precedents which had held that federal courts have broad jurisdiction over claims of malpractice in attorney malpractice cases where the underlying malpractice involved patent law, while reviewing a Texas Supreme Court ruling). Thryv, Inc. v. Click-to-Call Technologies, LP (2020) (7-2), the Court disagreed with the Federal Circuit and held that the PTAB’s decision on whether a petition for inter partes review is timely is not judicially reviewable replying on Cuozzo Speed Technologies, LLC v. Lee, 136 S. Ct. 2131 (2016) SAS Institute, Inc. v. Iancu, the United States Supreme Court decided an important aspect of procedure in IPR cases holding that once an inter partes review is instituted by the Director of the USPTO, the PTAB must decide the patentability of all of the claims challenged. A major case deciding the constitutionality of part of the AIA and the remedy if it is unconstitutional is pending in Arthrex which has had oral arguments but not decision on the merits yet. The AIA eliminated tax strategy patents (a case to resolve the issue had been pending when the legislative fix arrived).