From the Sixth Circuit argument
Comments
“I hate to break it to you, particularly with some law students here. That is all we do.” Cf. Bush v. Gore, 531 U.S. 98, 109 (2000) (“Our consideration is limited to the present circumstances . . .”).
Posted by: Kevin Lapp | Feb 3, 2020 12:06:13 AM
Perhaps I’ll offer a hot take about this. Law professors and appellate judges’ love for hypotheticals, the endemic snobbery (in which I partake) among appellate practitioners towards lawyers who answer hypotheticals with “that’s not this case,” and Sutton’s explanation of why hypotheticals are so central to appellate adjudication, all assume that cases are properly and even necessarily decided by what in the past we would have called “legislative rules,” which decide or purport to decide a broad swath of hypothetical cases with quite different facts that aren’t before the courts rendering these rules, and which in olden days would be thought of as unnecessary dicta. On the other hand, lawyers who answer “that’s not this case” when presented with hypotheticals may be ignorant of how appellate courts decide cases these days, and admittedly not understanding the courts you practice before isn’t good lawyering, but their answers arguably reflect a certain wisdom about the preferability of narrow common-law rulings that only say what’s necessary and are sensitive to a case’s facts.
Posted by: Asher Steinberg | Feb 2, 2020 7:01:30 PM
It encapsulates stare decisis pretty well, too! As Fred Schauer said in Precedent (1987), “Today is not only yesterday’s tomorrow; it is also tomorrow’s yesterday.”
Posted by: Joe Miller | Jan 31, 2020 9:49:41 AM