Problems With Authority

Authors

Amy J. Griffin

Document Type

Article

Abstract

(Excerpt)

Judicial decision-making rests on a foundation of unwritten rules—those that govern the weight of authority. Such rules, including the cornerstone principle of stare decisis, are created informally through the internal social practices of the judiciary. Because weight-of-authority rules are largely informal and almost entirely unwritten, we lack a comprehensive account of their content. This raises serious questions—sounding in due process and access to justice—about whether judicial decision-making rests ultimately on judges’ arbitrary and unexamined preferences rather than transparent and deliberative processes. These norms of authority are largely invisible to many, including parties appearing before the courts. They govern the construction of every judicial decision, but they are not the product of design. As a whole, this body of norms—a foundational set of unwritten insiders’ rules created without deliberation by an elite set of judges—is both problematic and surprisingly unexamined.

Imagine a game of Scrabble where only one of the players determines the value of the letters. Add that the player setting values does not have to tell other players what the letters are worth. Finally, add that the player can change the letter values at any time during the game, even after it is finished. Creating and adjusting values is what judges do with what I call “weight-of-authority rules,” which lie at the heart of judicial decision-making.

Weight-of-authority rules are almost entirely “unwritten law,” or “Lex non Scripta,” not enacted in a traditional positive law form. There are no constitutional provisions, no regulations, nor any legislation governing the weight of legal authority. The principle of stare decisis is often expressed in judicial opinions, but it did not originate in any particular case. Instead, like almost all rules related to the weight of authority, stare decisis emerged from the social practices of the judiciary, with no clear consensus on when it attained its current form. There is no textual source for the vast majority of authority practices; there never has been. Yet rules on the weight of authority are widely considered to be, without question, authoritative legal rules. We do not have a law that tells us the Constitution is valid; we accept that it is so. Similarly, the rules that tell us what else counts as law rest entirely on our acceptance of them. It is an obvious yet often unseen truth, like the water the proverbial fish swims in when it asks, “what is water?”