introduction for judicial precedent essay

Practice Makes Precedent

Responding to Josh Chafetz, The Supreme Court, 2016 Term — Essay: Unprecedented? Judicial Confirmation Battles and the Search for a Useful Past

• Michael J. Gerhardt

Response To:

• Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past  by  Josh Chafetz
• November 2017
• See full issue

Introduction

Professor Josh Chafetz’s superb Essay, Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past , 1 calls to mind the historian Carl Becker’s trenchant observation, “history is what the present chooses to remember about the past.” 2 In law and in life, the present is a relentless quest to define the past.

In his Essay, Chafetz criticizes “charges of unprecedentedness” in Senate contests over judicial appointments that merely serve the “political judgment” of those casting them. 3 Chafetz examines the recent history of such contests to “highlight the ways in which any claim of (un)precedentedness involves particular, contestable constructions of the past.” 4 He illustrates the point by assessing two plausible narratives regarding the Senate’s confirmation of Justice Gorsuch and its rejection of President Obama’s nomination of Judge Garland to the seat vacated as a result of Justice Scalia’s death. Chafetz suggests that, when analyzing these and other narratives involving judicial appointments, people should seek “to construct a narrative of the past” 5 that “fits the data.” 6 He concludes that whenever we are “confronted with a claim in constitutional politics that some actor is engaged in unprecedented behavior,” we should ask first, “[u]nder what framing of the past” has that assertion been made, and second, “[d]o we find that framing of the past to be helpful?” 7

In this Response, I hope to refine the conception of the past — and its connection to the present — that is central to Chafetz’s thesis by offering a nuanced view of the variety of historical practices — the particular form of the past that interests Chafetz — that may constitute “precedent” in constitutional analysis. I then attempt to situate Chafetz’s historical analysis within the larger set of analytical arguments available to those examining constitutional questions.

Put differently, we need to put precedent, in all its different forms, in perspective if we are to genuinely understand its role in constitutional analysis. Precedent alone does not allow us to make judgments about the past. The meanings of historical practices, like the meanings of other kinds of precedents, depend less on the intentions of those who created them than on the normative significance that subsequent authorities try to invest in them. The debate over precedent is therefore more than just intellectual. The frames used have implications for future actions, and we should endeavor, as I believe Chafetz has encouraged, to understand that debates about constitutional precedent involve choices of frames, and that those choices have different ramifications and levels of coherence.

While I agree that people with a stake in confirmation contests are prone to sacrifice intellectual honesty in proclaiming unprecedentedness to gain leverage in those contests, we should be careful not to overstate the “normative work” that the charge of being unprecedented actually does. 8 Being unprecedented hardly means something is forbidden. There was the first presidential veto, the first impeachment, and the Senate’s first rejection of a Supreme Court nomination, just to name a few. 9 “Unprecedented” is not always a “dirty word,” 10 and the fact that something is unprecedented is not, in itself, determinative. Sometimes it is accurate, but it is rarely fatal, which suggests that the “normative work” that it does may not amount to much. None of these genuinely unprecedented events broke any patterns, but they might have begun ones, and breaking or beginning patterns might be problematic, but the reasons for that should be explained. As scholars, we aspire to illuminate the patterns of precedent and the connections between precedent and other sources of constitutional meaning that are not grounded in the past. This entails clarifying the scope, credibility, context, persua-siveness, relevance, and consequences of the choices made to construct precedent. 11

In Part I, I examine the distinctive features of historical practices as precedent. In Part II, I propose a different frame for understanding Judge Garland’s rejection and Justice Gorsuch’s confirmation — understanding constitutional law as a competition for analogies or metaphors. In the final Part, I call attention to the larger framework in which historical practices are just one of many modalities of constitutional argument. The Garland-Gorsuch fights were not just over constructing precedent. They were part of a series of historical efforts attempting to coordinate multiple modes of constitutional analysis in confirmation conflicts, all driven by interpreters’ normative or political agendas. Precedent cannot be understood detached from these efforts.

I. Historical Practices

The Essay’s focus is on a special kind of precedent: historical practices. Historical practices refer to how government has understood and exercised its powers in the past. 12 Courts generally defer to historical practices, 13 but unilateral actions of the Senate, as on confirmation matters, are more complex. Chafetz’s historiography is consistent with the functions of historical practices, but a fuller explication of their nature and influence as precedent will enrich our understanding of their role in confirmation conflicts and constitutional analysis more generally.

For example, historical practices, which the Senate considers to be precedent, 14 function as binding or persuasive authority depending on their context. When an action is binding, its nature and scope are relatively clear. When the Senate failed to take any action on Judge Garland’s Supreme Court nomination, that decision had binding effect throughout the constitutional system: It nullified Judge Garland’s nomination, which formally lapsed, pursuant to Senate rules, at the end of the legislative session during which it had been made; 15 and it barred Judge Garland’s recognition as a Supreme Court Justice. The only way for a Justice to be appointed is through compliance with the conditions set forth in the Appointments Clause 16 or through a recess appointment. 17 Since Judge Garland had not satisfied any of these conditions, he failed to become a Justice, and the Senate’s inaction on his nomination had binding authority, at the time it was done, throughout the constitutional system. This outcome was fixed unless Judge Garland later fulfilled the conditions for appointment.

“Precedent” is, however, a capacious term, and its use often raises several questions important to analyzing historical practices as a source of constitutional meaning. How well-settled are those practices? How strong a precedent do they make? Is the precedent binding? If so, on whom? And on what questions and in what way? 18

In the contest over constitutional meaning, not all historical practices are equal. Precedents can differ in terms of their relative strengths. Historical practices weave a tapestry with many different kinds of threads, some stronger than others. Some historical practices are more deeply embedded as precedents than others. Consider, for example, Justice Frankfurter’s concurrence in the Steel Seizure Case , 19 in which he claimed that a “systematic, unbroken” line of historical practices, without objection from other branches, deserved judicial deference. 20 There, Justice Frankfurter and three other Justices found no such settled practice to support President Truman’s seizure of control over the nation’s steel mills. 21 The more embedded a historical practice has become, the stronger its claim to constitutionality. Hence, in Marsh v. Chambers , 22 a majority of the Supreme Court upheld the constitutionality of opening legislative sessions with prayer because the practice was “deeply embedded in the history and tradition of this country.” 23 It is not the purpose of Chafetz’s Essay to answer at what point historical practices become so enduring and uniform that they become synonymous with constitutional meaning, but an examination of historical practices leads to that basic question.

Precedents also differ in whom they bind. For example, the Senate rules clearly are binding within the Senate. 24 The deployments of the “constitutional” or “nuclear” option formally imposed a construction of Senate Rule XXII 25 disallowing filibusters of any judicial nominations unless a majority decided later, pursuant to the rules, to adopt a different construction of Rule XXII. 26 The choices of whether to deploy the nuclear option, first in 2013 to effectively bar filibusters of lower court nominations and then in 2017 to bar filibusters of Supreme Court nominations, 27 were discretionary, but each deployment was “authoritative” within the Senate. 28 If the Supreme Court were ever to analyze the constitutionality of a Senate rule or practice, such as the filibuster or deployment of the nuclear option, the fact that one is a rule and the other is a practice within the Senate would not bind the Supreme Court’s determination.

In contrast, the Senate’s failure to confirm Judge Garland bound everyone. It was a final action insofar as Judge Garland and every other constitutional actor were concerned. The failure to confirm Judge Garland meant that he was not entitled to take the oath of office for the Supreme Court seat to which he had been nominated, and that no other constitutional actor — certainly not Judge Garland, the President, or the Supreme Court — had the power to act contrary to that final judgment.

The Senate’s confirmation of Justice Gorsuch, however, bound everyone but Justice Gorsuch. It was a prerequisite for his appointment to the Supreme Court. Once confirmed, as the Supreme Court declared in Marbury v. Madison , 29 his appointment vested, and all that remained for then-Judge Gorsuch to become a Justice was taking the oath of office. He could have chosen to forego taking the oath and thus to turn down the office. Once Justice Gorsuch took the oath, he clearly had all the powers (and protections) accorded to Justices of the Supreme Court under Article III of the Constitution, which were all denied to Judge Garland.

Yet some precedents can differ in the degree to which they bind other arguably similar matters, particularly in the future. Like the Senate’s failure to confirm Roger Taney as Treasury Secretary and then later as Associate Justice, 30 the Senate’s actions on Judge Garland and Justice Gorsuch could each be persuasive authority in the future of the federal appointments process, depending on how subsequent authorities construe their significance. Judge Garland’s rejection did not bind the President’s or Senate’s discretion in later proceedings any more than Roger Taney’s rejections as Treasury Secretary and as Associate Justice bound the President’s choice to nominate him or the Senate’s discretion on whether to confirm him as Chief Justice. President Trump was free to nominate someone other than Judge Garland to the Court’s open seat. 31 Had Hillary Clinton won the 2016 presidential election, she would have had the same freedom.

There remain questions about the future significance of the Senate’s actions on Judge Garland and Justice Gorsuch. Those actions’ persuasive authority as precedents is Chafetz’s principal concern. His concern is largely not with what happened in the past. We know what happened. We know what people said and did. His major concern, to which I turn in the next Part, has to do with the meaning that people give these events.

II. Metaphors and the Garland-Gorsuch Fights

The real importance of the battles over Judge Garland’s and Justice Gorsuch’s respective appointments is best understood as an example of the “choice between competing analogies” 32 or metaphors. The competition to shape the narrative on Judge Garland’s rejection and Justice Gorsuch’s confirmation is a case in point.

The dominant narrative on these events became the one that Chafetz finds most persuasive — that the Senate’s failure to act on Judge Garland’s nomination and its confirmation of Justice Gorsuch were “part of the broader current of interbranch politics, and the determinants of the success or failure of a President’s nominees will not be so dissimilar from the determinants of the success or failure of other parts of her agenda.” 33 On this narrative, Supreme Court nominations’ success depends on Presidents’ strengths and popularity, and President Obama’s popularity, according to Chafetz, had sharply declined by the time of Judge Garland’s nomination. This decline boded disaster, thus making Obama a weaker President in the context of judicial appointments. 34 For Chafetz, this narrative tells a “persuasive story,” 35 because it “fits the data.” 36

I prefer, however, the metaphor of America’s Got Talent to explain the Garland-Gorsuch battles: both nominees were talented, but the show’s judges simply liked Justice Gorsuch better. This metaphor suggests that at bottom, American politics is not that different from American reality television: preferences and tastes will dictate the winners and losers. The fact that we have a former reality television star in the Oval Office is a reminder that what we see on television might not differ much, if at all, from reality. It reminds us how much playing to an audience matters in our lives and politics, and how political or constitutional conflicts play out in the media. Thus, in the contemporary fight to control the Supreme Court, the judges themselves become the “contestants”; the senators become the judges; the contestants tailor their performances to suit the judges; the senators proclaim to the audience their reasons for voting one way or another; and at the end the audience, the public, shouts its approval or disapproval of the final vote. The outcome is either popular or unpopular, but the judges’ rulings are (usually) final. If this metaphor has appeal, it raises the question why we need a more complex explanation of these confirmation contests beyond stating that the Senate expressed its preference. If we accept the simplest explanation as the best one, then it seems that any other account, including Chafetz’s preferred explanation, has the burden of proving itself not only plausible, but also more plausible than the America’s Got Talent metaphor.

The competition among different narratives on the Garland-Gorsuch contests shows how there are seemingly endless levels of generality and specificity with which to view historical events. Any number of frames or narratives can fit the facts. If more than one frame can explain the facts, how do we choose among them? How do we choose the most persuasive, or the simplest, or is the simplest explanation the most persuasive? Initially, Senate leaders defended obstructing Judge Garland’s nomination based on a Senate tradition of inaction on Supreme Court nominations during presidential elections. 37 There were a number of scholars, including me, who questioned the accuracy of that narrative, but that narrative can be made to fit the facts, not just now but in the future, for the simple reason that it is undeniable that the obstruction of Judge Garland’s nomination occurred in a presidential election year. If there were any doubt about whether there was a precedent, at least in the modern era, of the Senate’s blocking of a Supreme Court nomination because it was a presidential election year, there certainly is one now.

Yet, regardless of whether one prefers Chafetz’s narrative or my proffered one of America’s Got Talent , neither is complete. The nuances of context challenge the explanatory power of the competing narratives. First, I am not persuaded that Supreme Court nominations are like other legislative business. The political and constitutional stakes are much higher with a Supreme Court nominee than a policy dispute, since a Court appointment could last for decades and therefore typically much longer than the resolution of a particular legislative initiative, and since overturning constitutional judgments of the Court, once made, is more difficult than enacting new legislation. 38

It is hard to imagine a bigger obstacle to Judge Garland’s success than the fact that Republicans controlled the Senate — or that it was Justice Scalia, the Court’s most impassioned conservative, who had died. Justice Scalia’s death introduced the possibility for there to be, for the first time in nearly five decades, a majority of Justices appointed by Democratic presidents. That prospect was lost on no one, especially Republican senators for whom control of the Supreme Court is of paramount importance. 39 The salience of its having been Justice Scalia’s seat was evident on the evening of Justice Gorsuch’s nomination: the President explicitly likened him to Justice Scalia, the late Justice’s widow was present, and the nominee praised Justice Scalia as a model. 40 (The fact that the President staged this event more elaborately than other presidents have done in recent years underscores how important this nomination was to the President.) No narrative on the two nominations can be complete, much less persuasive, without accounting for the singular importance of the Supreme Court to Republican voters and the prospect of the Supreme Court’s losing the ideological balance it had at the time of Justice Scalia’s death.

Second, charging unprecedentedness might be overstated and diverting. I agree that the term should not be tossed around recklessly, but I think a bigger problem is the fact that, as Chafetz seems to acknowledge at the end of his Essay, 41 precedent abounds. Disproving whether something is unprecedented is easier than trying to show that the precedent claimed as a basis for some action was not on point. Precedent is routinely manipulated in constitutional debates; that is the nature of precedent. One advocate’s manipulation of precedent is another’s principled basis for action.

Making recourse to precedent is, however, not simply, as Chafetz suggests, an undertaking “to engage in a creative act of interpretation.” 42 The relevance of precedent depends on the facts, and not all facts are equal. As lawyers, we consider which facts are significant and why. John Adams famously warned that facts are “stubborn things,” 43 while Daniel Patrick Moynihan cautioned further that “everyone is entitled to his own opinion but not his own facts.” 44 Narratives should fit the facts, but the facts cannot be made up. This is reality television, after all, in which there might be editing — that is the creative exercise — of the facts. The facts can be taken out of context (which could happen in editing or the construction of a precedent), but the facts, if not the context, can be verified.

Much of the debate on and about the Gorsuch-Garland contests is about which facts mattered and how much and why they mattered. For example, it is a fact that Republicans controlled the Senate in these contests, and that clearly mattered a lot. My research, for example, suggests that, contrary to Chafetz’s assertion, President Obama’s popularity was not declining at the time he nominated Judge Garland to the Court. 45 I do not think it strengthens the narrative on these events to talk about the President as either strong or weak.  Those are characterizations, which miss or at least obscure the point.  I think it would be more illuminating to examine the relevance (and extent) of the public’s support for the President or the nominee during the Garland contests and how hedged in the President felt that he was in choosing a nominee for the open seat.

When we examine the contexts in which Judge Garland and then-Judge Gorsuch were nominated, the composition of the Senate was critical, perhaps determinative, to the outcomes of each contest, especially given how important the Supreme Court is to Republican leaders and voters. 46 Divided government, coupled with the salience of controlling the Court’s future direction, explains these contests more persuasively, at least to me, than characterizing President Obama as weak or strong and lumping the nomination together with the other legislative battles during President Obama’s tenure.

We have not yet considered, however, how much Judge Garland impacted his own chances for confirmation. Was Judge Garland just another judicial nominee rejected by the Senate in the ongoing confirmation battles, or is it possible that President Obama made a mistake in nominating Judge Garland? Was there a different nominee who might have energized liberal interest groups or Democratic voters more than did Judge Garland? Could President Obama have made any nomination the Senate would have confirmed? Chafetz’s preferred narrative suggests the answer is no. If he is right, then the key factors almost certainly would have been the relationship between the President and the Senate, their relative popularity, the proximity of the presidential election, the relative importance of a Court appointment to their respective constituencies, and the composition of the Senate. Yet even if these questions require too much conjecture, it is not too early to say that, in either Chafetz’s or my preferred narrative, nominating Judge Garland was quixotic. As a friend of mine suggested, it is hard to imagine people going to the barricades to protest the mistreatment of the Chairman of the Harvard Board of Overseers. The Republican strategy might have been a long shot, but it had little if any downside, given that even if Hillary Clinton had won the election, Republicans had still lost the Justice whose jurisprudence and combativeness they most liked on the Supreme Court. If Republicans retained control of the Senate, they could stall filling the seat. If they lost control of the Senate, they had delayed a change in the Court’s composition for at least a year. It did not matter if a Democratic majority someday used their obstruction as a precedent; they had the power to act now, and holding onto the seat was a promising campaign issue. 47 Judge Garland’s chances were never good.

The significance of adding yet another factor to this analysis merits consideration, too. Race might have played a significant role in these contests. The first African American President in American history, Barack Obama, faced obstruction from his first days in office as a result of the pledge of then–Senate Minority Leader Mitch McConnell from Kentucky to block anything President Obama did in order to ensure he was a “one-term president.” 48 This was not the typical interbranch politics. After Republicans took over the majority in the Senate, Senator McConnell and his coalition continued their opposition, which extended into President Obama’s second term. In crime dramas on television and in real life, we often ask, “who benefits?” With the obstruction extending to Judge Garland’s nomination, that is easy to answer: we know that the Republicans benefitted, and so too did their presidential nominee. The obstruction handed President Trump a major issue — filling the Supreme Court seat — that energized his base. They would not have liked to see President Obama, whose legitimacy they had questioned from the outset of his presidency, get a victory like filling Justice Scalia’s seat. 49 When President Trump was faulted for not having more roundly condemned the white supremacist marchers who created havoc in Charlottesville, Virginia during the summer of 2017, 50 it was hard to miss that his reluctance enabled him to avoid offending this part of his base. It is possible that, with time, we might better understand the extent to which Judge Garland’s nomination was collateral damage in an effort to hurt the legacy of a President whom many people did not want to see in the White House. In the meantime, we know that the Justice who did get confirmed, Justice Gorsuch, is likely to further please the President’s base, including the white supremacists the President was reluctant to offend, when affirmative action comes back before the Court and he casts a vote against it as expected. 51

Third, neither Chafetz’s nor my narrative fully explains Judge Garland’s rejection and Justice Gorsuch’s confirmation within the context of confirmation battles in recent years. Was Judge Garland’s rejection payback? Do Judge Garland’s rejection and Justice Gorsuch’s confirmation signify that only nominees who commit to following original meaning, as did Justice Gorsuch, will be confirmed by the Senate? Do these events bury or undo the precedent set by the Senate’s rejection of the nomination of the eminently qualified Judge Robert Bork based on his expressed commitment to a judicial philosophy that threatened many of the Supreme Court’s landmark decisions? 52

These unanswered questions all go to the “normative work” that these events as precedents will do. That undertaking is manifest through the “framing” that people choose to explain the precedential value of these events. 53 The fact that the Garland-Gorsuch contests could be used to “answer” so many questions (or in the language of Chafetz’s article, to “set” so many precedents) is the reason that the framings of the incidents moving forward may prove to be as sharply contested as the nominations themselves. The meaning of Judge Garland’s rejection or Justice Gorsuch’s confirmation will be determined less by the senators in the majority who made these events happen than by future senators who will be asked to construe them. Those future senators will make the critical determinations about the significance of these constitutional events. The Supreme Court has been the ultimate spoils in confirmation battles. Political leaders construct it, just as they shape the arguments — and precedents — they use to their advantage in confirmation battles.

It is therefore challenging work to find an appropriate frame in such contested territory, where rhetoric can easily get overheated. Chafetz reasonably suggests that analysts can ground themselves by asking first, “Under what framing of the past? And the second question should then be: Do we find that framing of the past to be helpful?” 54 Following the suggestion of Professor Martha Minow, I would ask a third question, taken from the television show Sesame Street , “[w]hich one of these things is not like the others?” 55 This question requires that we identify the ways in which one thing is like or unlike another. That question takes us back to the competition among analogies or metaphors. Finding the most apt precedent, or at least ruling out which precedents are not pertinent, is a classic inquiry in legal argumentation, for reasoning by analogy is basic to legal reasoning. 56 In the Garland-Gorsuch contests, all the players were trying to find the right “precedent,” that is, to show which earlier precedent most strengthened their case — or which dispute the current one most closely resembled. While I argued that these contests deviated from the patterns of conduct that the Senate had followed in Supreme Court confirmation proceedings since the beginning of the twentieth century (and thus this is why I thought, as a normative matter, it mattered that Justice Fortas got a hearing and Judge Garland did not), 57 I take Chafetz’s point that in the frame of confirmation battles, inaction was hardly unprecedented. Our friendly dialogue is part of an ongoing conversation to find the precedents these contests most closely resemble.

That back and forth is basic to historiography. I agree that all of us should do our best to develop narratives that fit the facts, but the construction of such narratives requires more than just knowing the facts and more than arguing about precedent. It requires, as the next Part suggests, developing a coherent and persuasive coordination of all the different modalities of constitutional argumentation, of which the past is only one.

III. The Bigger Picture

In constitutional analysis, the past is important, but it is not the whole picture. Precedent is the most common mode of constitutional discourse, but a wide range of other arguments are made based on other modes, including text, original meaning, structure, moral reasoning, ethos or national identity, and pragmatism or consequences. 58

The combatants in the Garland-Gorsuch fights did not just use the past to serve their normative ends. They made arguments based on other modalities, too. For example, Professor Kim Roosevelt and I argued, while the resistance within the Senate to do nothing on Judge Garland’s nomination dug in, that the text of the Constitution’s Appointments Clause did not create exceptions for presidential election years. 59 The clause, on our view, set forth the process for appointing justices that applied throughout a President’s entire tenure and included no exceptions at any time, including presidential election years. 60 A response based on text was that the Appointments Clause vested the final authority over confirmation to the Senate’s “advice and consent,” and it was, as Republican Senate leaders argued, the Senate’s “advice” that the vacancy was going to be held for the next President to fill and therefore the Senate withheld its “consent.” 61 This is a perfectly credible textual argument, which reinforced the arguments based on structure — that the Senate has an independent voice on appointments and its discretion includes the choice not to act — and precedent — that past Senates have opted to nullify Supreme Court nominations by doing nothing. One could counter with the pragmatic argument that failing to fill the open seat damaged the Court as an institution. Republican senators responded that there was little if any damage done to the Court. 62 Still other arguments were made that it was “Justice Scalia’s seat” at stake and so Republicans were entitled to fill it with someone like Justice Scalia 63 — to which one could respond that, when Congress created the seat, it did not condition its being filled only by a Republican appointee or someone with the same judicial philosophy as Justice Scalia. The back and forth did not end with Justice Gorsuch’s confirmation, which resulted in conservatives exulting and liberals charging that Republicans had stolen Judge Garland’s seat. 64 In fitting narratives to the facts, we should remain mindful that in order to be complete the narratives should be analyzing how the facts fit into all the modalities.

Chafetz of course appreciates this bigger picture, but I am not convinced that a “broad temporal and substantive frame” is necessary to “situate the events of recent years,” 65 nor convinced by Chafetz’s assertion that political actors have incentives to use “narrower frame[s]” 66 in describing their opponents while historians and other purportedly impartial observers can achieve greater understanding of political events by examining them “at a high level of generality.” 67 He might be describing patterns of conduct he has observed, but I perceive that political actors will use whatever frame, general or narrow, that best serves their political purposes.

In the final analysis, a narrative should, to repeat Chafetz’s basic point, fit the facts. The facts should not be fit into broader or narrower lenses; they give rise to whatever inferences they raise. It is, however, not necessary to agree with Chafetz on the patterns of political discourse in order to agree with his final point that, in examining the past, we should be “asking about legislative obstruction and about the relative balance of power between the President and the Senate in getting nominees confirmed — [and how] to think through how specific procedural tools and mechanisms are used to achieve the ends of the political actors.” 68 These questions do not just lead us to the past; they lead us to consider how to coordinate multiple modes of constitutional argumentation to explain constitutional conflicts like those that put Justice Gorsuch on but kept Judge Garland off the Supreme Court.

IV. Conclusion

Josh Chafetz’s thoughtful discussion of precedent opens a special kind of Pandora’s box, unleashing seemingly chaotic uses of the past in constitutional argumentation, which he has expertly brought to heel. Searching for the connections between the past and present is a challenging quest that is reminiscent of William Faulkner’s great adage that “[t]he past is never dead. It’s not even past.” 69 Chafetz shows how present agendas skew our understanding and use of the past. He delivers a searing critique of politically driven descriptions of some current conflicts over judicial appointments as “unprecedented” and urges us to upgrade our constitutional argumentation by asking what framing we are using to understand the past and to what extent that framing helps us. The discipline he urges that we use in talking about the past is not confined to confirmation contests — or to past congressional practices. We should bring that discipline to other modes of constitutional argument and ask what frame we are using and to what extent was the framing useful. I think it will help our analysis further to also ask which earlier practices the current dispute most closely resembles. And when we talk about precedent or historical practices, we should be clear about what we mean by these terms.

Fitting narratives to facts — and not facts to narratives — as Chafetz suggests is difficult at best. Many plausible narratives can be fit to the facts, which begs the question, how do political authorities choose among them? Narratives, especially those spun by political leaders to further their agendas, are prone to overstatement (as is perhaps true of my own). For example, it is unclear how much of a problem charging unprecedentedness has become in constitutional discourse, how often that is done or how much damage that it actually does. At some point, every constitutional endeavor ever undertaken was unprecedented, so the charge has not had much effect, at least that I can see. At the same time, the pressure to simplify, rather than complicate, the narrative in politics is intense. Analogizing confirmation contests to reality television helps to illuminate how much the combatants want simple, appealing stories or narratives to further their causes. The former reality television star who is now President appreciates that the simpler the narrative, the better its appeal. Twitter, the President’s social media of choice, is ideally suited to simple narratives. We can and should insist that the combatants in confirmation conflicts use the past in honest ways, but we should not have any illusions about their receptivity to such admonitions.

The use of precedent is, at least in my judgment, an even bigger challenge than charging unprecedentedness, given how easy it is both to substantiate whether something is unprecedented and to manipulate precedent. As we try to fit narratives to facts, we should remain mindful that facts differ in their significance, which can complicate a narrative.

The quest for those of us who speak truth to power is to model how we wish others to use the past. In that quest, we aspire to develop more persuasive, intellectually honest arguments about historical practices in constitutional law. If Professor Chafetz is not unprecedented in his efforts to upgrade the quality and integrity of our constitutional discourse, he is, at the very least, an exemplary model of constitutional analysis to follow.

* Samuel Ashe Distinguished Professor of Constitutional Law, University of North Carolina at Chapel Hill; Scholar in Residence and Director of Content, National Constitution Center; and Richard Beeman Visiting Scholar, University of Pennsylvania Law School. I am very grateful to Hailey Wren Klabo, UNC Law School Class of 2019, for her excellent research assistance. From late January to mid-April 2017, I served as Special Counsel to the Ranking Member of the Senate Judiciary Committee for the Nomination of Justice Gorsuch; all opinions are mine and mine alone.

Recommended Citation: Michael J. Gerhardt, Response, Practice Makes Precedent , 131 Harv. L. Rev. F. 32 (2017), https://harvardlawreview.org/2017/11/practice-makes-precedent/ .

^ Josh Chafetz, The Supreme Court, 2016 Term — Essay: Unprecedented? Judicial Confirmation Battles and the Search for a Usable Past , 131 Harv. L. Rev. 96 (2017) .

^ Eric Foner, Opinion, Confederate Statues and ‘Our’ History , N.Y. Times (Aug. 20, 2017), https://www.nytimes.com/2017/08/20/opinion/confederate-statues-american-history.html [ https://perma.cc/T8HS-4HNK ].

^ Chafetz, supra note 1, at 96.

^ Id. at 97.

^ Id. at 110.

^ Id. at 129.

^ Id. at 132.

^ Id. at 130.

^ I have written about each of these in prior works. See Michael J. Gerhardt, The Federal Impeachment Process: A Constitutional and Historical Analysis (2d ed. 2000); Michael J. Gerhardt , The Federal Appointments Process: A Constitutional and Historical Analysis (rev. ed. 2003).

^ On constitutional construction, see generally Keith E. Whittington, Constitutional Construction: Divided Powers and Constitutional Meaning (1999).

^ See Michael J. Gerhardt, The Power of Precedent 111, 132 (2008).

^ See id. at 132–33.

^ See generally Rules and Procedure , U.S. Senate , https://www.senate.gov/reference/reference_index_subjects/Rules_and_Procedure_vrd.htm [ https://perma.cc/JR8Q-C5FZ ]; Michael J. Gerhardt, Non-Judicial Precedent , 61 Vand. L. Rev. 713, 729–32 (2008).

^ See Standing Rules of the Senate , r. XXXI(6), reprinted in S. Doc. No. 113-18, at 44 (2013).

^ U.S. Const. art. II, § 2, cl. 2.

^ Id. cl. 3.

^ I considered these and many other questions in my examination of the role of precedent in constitutional law. See Gerhardt , supra note 12.

^ Youngstown Sheet & Tube Co. v. Sawyer ( Steel Seizure ), 343 U.S. 579 (1952).

^ Id. at 610 (Frankfurter, J., concurring).

^ Id. at 611.

^ 463 U.S. 783 (1983).

^ Id. at 786.

^ See Standing Rules of the Senate , r. V, reprinted in S. Doc. No. 113-18, at 4 (2013).

^ Id. , r. XXII(2), at 15–16.

^ See generally Martin B. Gold & Dimple Gupta, The Constitutional Option to Change Senate Rules and Procedures: A Majoritarian Means to Overcome the Filibuster , 28 Harv. J.L. & Pub. Pol’y 205 (2004).

^ See Chafetz, supra note 1, at 104–09.

^ Id. at 105.

^ 5 U.S. (1 Cranch) 137 (1803).

^ See Chafetz, supra note 1, at 120–21.

^ There is an interesting question about the extent to which President Trump was bound by his own past actions, particularly his vowing as a presidential candidate to pick his Supreme Court nominee from a list of candidates he published during the campaign. See Joseph P. Williams, Trump: Next Supreme Court Nominee Will Come from Conservative List , U.S. News & World Rep. (May 1, 2017), https://www.usnews.com/news/politics/articles/2017-05-01/trump-next-supreme-court-nominee-will-come-from-conservative-list . Though the promise was not legally binding, President Trump clearly felt politically — if not also morally — obliged to follow through on his promise. He found his promise, in other words, to be very persuasive authority.

^ Harry Kalven, Jr., Broadcasting, Public Policy and the First Amendment , 10 J.L. & Econ. 15, 38 (1967).

^ Chafetz, supra note 1, at 127.

^ Id. at 131.

^ See Michael Gerhardt, Getting the Senate’s Responsibilities on Supreme Court Nominations Right , SCOTUSblog (Mar. 9, 2016, 11:10 AM), http://www.scotusblog.com/2016/03/getting-the-senates-responsibilities-on-supreme-court-nominations-right/ [ https://perma.cc/D6M7-TEC7 ].

^ On the stakes involved in fights over Supreme Court nominations, see, for example, Russell Berman, Why the Supreme Court Matters More to Republicans than Trump , The Atlantic (Oct. 14, 2016), https://www.theatlantic.com/politics/archive/2016/10/why-the-supreme-court-matters-more-to-republicans-than-trump/504038/ [ https://perma.cc/W9PS-FGH4 ].

^ See Michael Gerhardt,  The Gorsuch Nomination: What’s Next , SCOTUSblog  (Feb. 7, 2017, 4:08 PM), http://www.scotusblog.com/2017/02/gorsuch-nomination-whats-next/ [ https://perma.cc/2SXQ-355L ].

^ See Chafetz, supra note 1, at 130.

^ Id. at 96.

^ 3 Legal Papers of John Adams 269 (L. Kinvin Wroth & Hiller B. Zobel eds., 1965).

^ George F. Will, Opinion, The Wisdom of Pat Moynihan , Wash. Post (Oct. 3, 2010), http://www.washingtonpost.com/wp-dyn/content/article/2010/10/01/AR2010100105262.html [ https://perma.cc/WLD4-YVXM ] (quoting Moynihan).

^ See Presidential Approval Ratings — Barack Obama , Gallup News (Jan. 2017), http://www.gallup.com/poll/116479/barack-obama-presidential-job-apprroval.aspx [ https://perma.cc/Y95L-H3KS ].

^ See supra note 38 and accompanying text.

^ Reid J. Epstein, Donald Trump Says Supreme Court Fears Will Keep Republicans Loyal , Wall Street J.: Wash. Wire (Aug. 2, 2016, 1:26 PM), https://blogs.wsj.com/washwire/2016/08/02/donald-trump-says-supreme-court-fears-will-keep-republicans-loyal/ [ https://perma.cc/Q2MD-2B6D ].

^ Andy Barr, The GOP’s No-Compromise Pledge , Politico (Oct. 28, 2010, 8:09 AM), http://www.politico.com/story/2010/10/the-gops-no-compromise-pledge-044311 [ https://perma.cc/UB3C-KBUT ].

^ Indeed, one should recall that President Trump, one of the beneficiaries of the obstruction, kept pushing for years the lie that President Obama was not born in the United States. See Michael Barbaro, Donald Trump Clung to “Birther” Lie for Years, and Still Isn’t Apologetic , N.Y. Times (Sept. 16, 2016), https://www.nytimes.com/2016/09/17/us/politics/donald-trump-obama-birther.html [ https://perma.cc/WG7J-EMUM ].

^ William Saletan, What Trump Supporters Really Believe , Slate (Aug. 29, 2017, 11:51 AM), http://www.slate.com/articles/news_and_politics/politics/2017/08/trump_s_bigoted_base_by_the_numbers.html [ https://perma.cc/H936-FXNG ].

^ I do not mean to suggest that opposing the constitutionality of affirmative action is done merely to appease racists. Of course, there are, and have long been, principled arguments to be made against the constitutionality of such measures. My point instead is that one political benefit to the President of the nomination of Justice Gorsuch might be his nomination’s appeal, on issues involving race, to the part of his base that holds racist views against minorities.

^ See, e.g. , Matt Flegenheimer, The Roots of the Battle over Neil Gorsuch: ‘They Started It ,’ N.Y. Times (Mar. 31, 2017), https://www.nytimes.com/2017/03/31/us/politics/supreme-court-neil-gorsuch-senate.html [ https://perma.cc/9TWP-FGFQ ]; Lily Rothman, How Robert Bork Helped Make Neil Gorsuch’s Supreme Court Confirmation Possible , Time (Apr. 7, 2017), http://time.com/4730055/neil-gorsuch-confirmation-robert-bork-history/ [ https://perma.cc/2RQQ-9QRP ].

^ Chafetz, supra note 1, at 131.

^ Martha Minow, Making All the Difference 1 (1990).

^ See Edward H. Levi, An Introduction to Legal Reasoning 1–2 (1948).

^ See supra note 37 and accompanying text.

^ See generally Philip Bobbitt, Constitutional Fate: Theory of the Constitution (1982).

^ Michael Gerhardt & Kermit Roosevelt, Opinion, Here’s What’s Wrong with Pat Toomey’s Opposition to Merrick Garland , PennLive.com (May 4, 2016, 8:08 PM), http://www.pennlive.com/opinion/2016/05/heres_whats_wrong_with_pat_too.html [ https://perma.cc/8EMN-6R76 ].

^ Amita Kelly, McConnell: Blocking Supreme Court Nomination ‘About a Principle, Not a Person ,’ NPR (Mar. 16, 2016, 12:31 PM), http://www.npr.org/2016/03/16/470664561/mcconnell-blocking-supreme-court-nomination-about-a-principle-not-a-person [ https://perma.cc/Z3HZ-4X7H ].

^ See Chuck Grassley, Opinion, Sky Won’t Fall with One Less Justice , Des Moines Reg. (Apr. 10, 2016, 7:00 PM), http://www.desmoinesregister.com/story/opinion/columnists/iowa-view/2016/04/10/grassley-sky-wont-fall-one-less-justice/82794878/ [ https://perma.cc/9LFA-7TLT ].

^ Jay Sekulow, Opinion, Trump Taps Gorsuch: Why the ‘Scalia’ Seat on the Supreme Court Matters , Fox News (Jan. 31, 2017), http://www.foxnews.com/opinion/2017/01/31/trump-taps-gorsuch-why-scalia-seat-on-supreme-court-matters.html [ https://perma.cc/9P65-MS82 ].

^ Andrew Kugle, Liberals Decry ‘Stolen Seat’ as Gorsuch Officially Sworn in as Supreme Court Justice , Wash. Free Beacon (Apr. 10, 2017, 12:17 PM), http://freebeacon.com/politics/liberals-tweet-stolen-seat-gorsuch-officially-sworn-supreme-court/ [ https://perma.cc/SY4Q-G4RE ].

^ William Faulkner, Requiem for a Nun 73 (1951).

• Legal History

November 10, 2017

Judicial Precedent and Its Forms

Introduction.

Judicial precedent is a common law system by which a precedent serves as an authority, principle, or rule established in litigation formerly decided. This becomes a binding or persuasive precedent for lower courts or tribunals to follow in deciding future cases with similar facts or issues. The precedent appears in various forms. They are precedent in action that refers to the judge’s speech in a judgment of the European Court of Justice (ECJ) since all the English courts are bound by the ECJ concerning European law with effect from 1973.

The Supreme Court ‘s ruling can be a precedent (formerly House of Lords) as this is the highest domestic court of appeal serving as the judicial authority which the House of Lords enjoyed formerly. Court of appeal’s decisions are mandatory on the High Court and their decisions must not contradict the Supreme Court’s precedents. Divisional Courts that are bound by the decisions of the Supreme Court, Court of Appeal, and High Court which is bound by the decisions of Supreme Court, the Court of Appeal, and Divisional Court and not by another High court judge (Lewis, n.d.).

It would be clear therefore judiciary’s function is not to simply apply the laws but to interpret them and establish binding precedents. It is because there are difficulties in drafting out legislation and there are chances of unintended meanings and ambiguities creeping in the statutes. In many cases, the Parliament’s intent will be very clear in which case it will facilitate the Court’s interpretation in an unambiguous manner.

Courts are enabled to overrule their own previous decisions through judicial interpretation. In Anderton v Ryan (1985), the House of Lords had interpreted the Criminal Attempts Act 1981 in such a manner making the Act itself ineffective. However, the House of Lords giving credence to academic criticisms of the decision, admitted its errors and overruled its own decision in Anderton v Ryan (1985) while deciding in R v Shivpuri (1986) just after one year.

In this, Lord Bridge observed that in cases of ambiguous nature, the strict judicial precedent can be departed as mentioned in the Practice Statement (Judicial Precedent) 1966 1 WLR 1234 in spite of the requirement of certainty in Criminal Law. The Lord has justified his departure pointing out the provisions in the practice statement that in case of a serious error found in a House of Lord’s decision which distorted the law, it should be corrected at the earliest. Thus, the operation of judicial precedent in the English Legal System could make the House of Lords overruled its own previous decision (Slapper & Kelly, 2011).

The judge-made law is inferior and can be always overruled by the legislature and as such precedents should not be regarded as usurping of its powers by the judiciary. The judicial precedents remain law for the time being until they are overruled and they are subject to the rule of stare decisis. The precedent’s one meaning is what has been above. Another meaning is that it can refer to the decided case itself as a precedent to be relied on in the future.

The precedent actually involves the application of the principle of stare decisis which enjoins upon the court to go by the cases already decided. The principle of stare is rather self- imposed by the judiciary and there are no legislative provisions in respect of judicial precedent. However, there are two exceptions. The first one is that the courts must follow decisions on EU law pronounced by the European Court as per the European Communities Act 1972.

The second exception is that the s 2(1) of the Human Rights Act 1998 requires that the courts and tribunals must take into account of any applicable judgments, decisions, declarations, and opinions of the European Court of Human Rights, the European Commission, and the Committee of Ministers of the Council of Europe while ruling on the questions related to European Convention of Human Rights and giving effect to them in the United Kingdom.

This is however not to mean that the English Courts and Tribunals are bound by those decisions. For example, in R (RJM) v Secretary of State for Work and Pensions [2008] 3 WLR 1023, HL, it was held by the House of Lords that where any of their decision conflicts with a subsequent decision of the European Court of Human Rights, the English Courts below the House of Lords are governed by the principle of stare decisis to follow the decision of the House of Lords alone. However, appeals can be made before the House of Lords now the Supreme Court so that the conflict can be resolved.

In R v Horncastle [2010] 2 WLR 47, SC, it was held that in rare cases, the Supreme Court can decline to follow the decision of the European Court if it militates against the particular aspects of domestic process. This will result in the two courts engaging in dialogues where the European Court may offer to reconsider its decision. Horncastle involved the conviction of the defendant under the Criminal Justice Act 2003 based on the statement of a witness in absentia which does not amount to a fair trial guaranteed under Article 6 of the ECHR. The Supreme Court conviction was not in violation of said Article 6.

There are two aspects to a precedent. They are ratio decidendi and obiter dictum. The ratio decidendi is the mandatory part of a judicial decision including the one based on a precedent. On the other hand, obiter dictum represents passing remarks made by the judge during the course of hearings or in a judgment which need not be binding. But it has a persuasive force. Sometimes such opinions of the House of Lords sounding as obiter may turn out to be a part of ratio decidendi and hence will have the force of a precedent. Since the binding part of ratio decidendi is the principle of law, such cases are not binding on questions of fact (Ingman, 2011).

Thus, by virtue of the principle of judicial precedent, judges are not considered to make or change a law which is always the same. According to this logic, the overruling of an earlier decision does not represent a change of law. The actual position is that the true nature of law is discovered or disclosed. Thus, judicial precedent is governed also by the principles of judicial interpretation which goes deep into the legislative intent before passing the laws.

The meanings of the words appearing in the statutes of the Parliament are interpretable by the judges in accordance with Statutory rules and Common law rules. Their interpretation and the resultant ratio decidendi become precedents for the future compliance of the courts and tribunals below.

Anderton v Ryan [1985] UKHL 5.

Criminal Justice Act 2003 , 2003 c. 44. Web.

Ingman, T. 2011, The English Legal Process. Oxford: Oxford University Press.

Lewis, S. n.d., Using cases to illustrate, explain how and why the courts make use of the doctrine of judicial precedent and statutory interpretation to resolve points of law . Web.

R (RJM) v Secretary of State for Work and Pensions [2008] 3 WLR 1023.

Slapper, G., & Kelly, D. 2011, The Englsih Legal Syatem. Oxon: Taylor & Francis.

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Introduction to Business Law: Judicial Precedent Essay

Judicial precedent, legal issues involved, declaration of importance, list of references.

Judicial precedent at times is called legal citation is not confined to case law statutes, ordinances, regulations and administrative rulings also include in this wide canopy. Disclosure of the latter may be of greater practical importance, especially if it would be more difficult for the tribunal to discover on its own. What constitutes a controlling jurisdiction can be a complicated question. On questions of federal law, U.S. Supreme Court precedent is obviously controlling, as are cases from the federal circuit in which you are litigating. As for state law, regardless of the court, you are in, you are obliged to cite directly adverse authority from the jurisdiction whose law the court is applying. In addition, if you are urging the court to adopt or rely upon the law from other jurisdictions, the duty of candor requires disclosure of directly adverse authority from those jurisdictions as well. The disclosure obligation is not limited to adverse appellate decisions—the rule requires disclosure of any adverse authority in the controlling jurisdiction, not just controlling authority (Sealy, 2000).

American Bar Association Formal Opinion 280 (June 1949), which is still relevant today, provides a few questions to ask when you find directly adverse authority:

Is the decision which opposing counsel has overlooked one which the court should clearly consider in deciding a case? Would a reasonable judge properly feel that a lawyer who advanced as the law a proposition adverse to the undisclosed decision was lacking in candor and fairness to him? Might the judge consider himself misled by an implied representation that the lawyer knew of no adverse authority?

Some courts have evenly maintained that a lawyer’s duty of candor to the court must always prevail in any conflict with the duty of zealous advocacy while representing its client. At this standstill, some equilibrium must be wracked between the two ethical obligations. Under the Model Rule 3.3 cmt. 3, ‘a lawyer is not required to make a disinterested exposition of the law, but must recognize the existence of pertinent legal authority’. Counsel for an appellee; for instance, does not require disclosing the fact that he could find no case law to argue confirmation of a fact adjudged by the lower court. The rules do not endorse; a requirement that the lawyer, in addition to advocating the cause of his client, steps first into the shoes of opposing counsel to find all potentially contrary authority, and finally into the robes of the judge to decide whether the authority is indeed contrary or whether it is distinguishable”.

If the candor towards tribunal is taken into consideration, then according to 27 NCAC 02 rule 3.3, (Macdonald and Koffman, 2007)

A lawyer shall not knowingly

• Make a false statement of material fact or law to a tribunal or fail to correct a false statement of material fact or law previously made to the tribunal by the lawyer;
• fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel; or
• offer evidence that the lawyer knows to be false. If a lawyer, the lawyer’s client, or a witness called by the lawyer, has offered material evidence and the lawyer comes to know of its falsity, the lawyer shall take reasonable remedial measures, including, if necessary, disclosure to the tribunal. A lawyer may refuse to offer evidence, other than the testimony of a defendant in a criminal matter that the lawyer reasonably believes is false.

In deciding disputes of inferior courts follow the decision of the higher courts if cases involving similar facts of law and points of law come before them. It must be noted at this stage that it is not the entire judgment that is a binding precedent. It is only that part that constitutes the ratio decidendi (reasons for the decision) and the rest of the judgment is not binding. Sometimes a may have said things which are strictly relevant to the final judgment. Such remarks are known as obiter dicta (remarks made by the way) and do not create any binding precedent. However, an obiter dictum is not altogether destitute of legal consequences; it creates a persuasive authority when there is no binding precedent available.

Declaratory precedent : Where a judge applies an already existing principle to the case before him for his judgment, his decision is a declaratory precedent. But if no applicable legal principle exists, the judge creates a new rule of law to govern the facts before him, and this may act as a future precedent for the judges of the inferior courts.

The decisions of the High Court bind the courts inferior to it as magistrates’. A High Court judge is bound by the decision of the Court of Appeal, but he is not absolutely bound to follow the previous decisions of other High Court judges. In actual practice, he will nearly always do so unless convinced that the other judge was wrong. The magistrates’ court is bound by all superior courts, but they themselves do not create binding precedent, and their judgments are not reported in the Law Reports.

It should be noted that the decisions of superior courts are not strictly binding but are usually followed in similar cases unless they are found not compatible with the situation in question.

Advantages of case law are

• Certainty : The maxim of stare decisis (to stand by the decision already made) has contributed certainty and consistency in the development of the rules of law. The strict requirement of following the precedent of the superior courts also relieves the judges for their decisions.
• Possibility of growth : Case law grows out of the practical problems and thus it keeps pace with the changing needs of society.
• Rich in detail: Each principle of law or equity is supported by elaborate judgments of distinguished judges. These are tremendous values to judges, lawyers and students of law who understand, appreciate and apply to the practical problems facing them.

Disadvantages are

• By distinguishing the fact, i.e. the case before him does not fall within the ratio decidendi of an earlier case and there exists some material difference between the facts of these two cases.
• By proving that the superior court had omitted to consider the provision of some relevant Act or some other earlier decision which was binding on it. Such a decision of the superior court is known as ‘ pe r incuriam’.
• Over-subtlety : The concept of precedent has led judges sometimes to create artificial distinctions to avoid following an earlier decision.
• Bulk and complexity : Much of the case law is contained in voluminous law reports dating back to the Middle Ages. These reports have to be constantly referred to by those who are connected with the administration of justice. For these reasons, a great volume of case law has now been embodied in statutes.

There must be offer and acceptance. Offer and acceptance have the following rules:

• An offer may be made to a specific person or to any member of a group of persons or to the world at large, but it cannot form the basis of a contract until it has been accepted by an ascertained person or groups of persons.
• An offer may be made by word of mouth in writing or by conduct.
• An offer must contemplate giving rise to legal consequences if accepted.
• The terms of the offer must be certain and free from vagueness in expression.
• Every offer must be communicated; for a contract to arise, two parties must be of the same mind, and so it cannot be accepted by a person who does not know that it has been made. This applies to both specific and general offers.
• The offeror may attach any conditions to his offer but must communicate them to the offeree before they bind him by his acceptance of the offer. In commercial agreement, this rule is chiefly important where the terms of the offer are usually of a complex nature (Graw S., 178-201).

The person advertised in the newspaper for a reward to anyone who gets his dog. A shepherd found the dog when the offer had elapsed.

This is a case of offer and acceptance. In order to be an enforceable contract, certain basic requirements must be present. There must be an agreement based upon genuine consent of the parties, supported by consideration and made for a lawful object between competent parties. The rules of an offer include:

An offer may be made to a specific person or to any member of a group of persons or to the world at large, but it cannot form the basis of a contract until it has been accepted by an ascertained person or group of persons. If A makes an offer to B, it is a specific offer and B is the only person who can accept it. But in many cases, it is immaterial to whom the offer is made. Offers made by an advertisement are the commonest form of offers made to the world at large and can be accepted by anyone just by acting on them (Gower and Davies, 2006).

Carilil V Carbolic Smoke Ball Co, 1893

The defendants offered a reward of $ 100 to anyone who contracted influenza after using their smoke ball for a fortnight. The plaintiff, relying on the advertisement, bought the smoke ball and used it as prescribed, but still contracted influenza. She sued for the advertised reward. Held that the defendant was a true offer, and not a mere advertising puff, and the defendants were liable to pay the reward.

An offer may be made by word of mouth, in writing or by conduct. The person making the offer is called the offeror, and the person to whom the offer is made is called the offeree. A common example of the offer by conduct may be omnibus plying on a particular route. It is an offer by the owner of the bus to carry passengers at the published fares for various stages. The offer is accepted by conduct when a passenger boards the bus with the intention of becoming a passenger(Gower and Davies, 2006).

An offer must contemplate giving rise to legal consequences if accepted. The terms of the offer must be certain and free from vagueness in expression. L bought a horse from G, and offered to pay another 5 for the horse if it proved lucky to him. Held the term “lucky” was too vague to form the basis of a legally enforceable agreement.

Every offer must be communicated; for a contract to arise, two parties must be of the same mind, and so it cannot be accepted by a person who does not know that it has been made. This applies to both specific and general offers. Thus where A, without knowing that a reward is offered, finds B’s lost dog and brings it to B, he cannot recover the reward if he learns of the reward after returning the dog(Gower and Davies, 2006).

R V Clarke, 1927

A reward was advertised for information leading to the arrest of the two murderers of two police officers, and a free pardon if the person giving the information was an accomplice. C gave the information. Held C was not entitled to a government reward because at the time the information was given by him he had forgotten all about the reward d.

The offeror cannot bind the other party without his consent(Gower and Davies, 2006).

Fleethouse V Bindley, 1862

F wrote to his nephew offering to buy one of his horses adding: if I hear no more about him I consider that the horse is mine $ 30.15 shillings”.

The nephew did not reply, but told Bindley, an auctioneer, to keep the horse out of the sale of this farm stock as it was sold to the plaintiff.

Bindley sold the horse by mistake and F sued him for damages. Held that as the nephew had never communicated his acceptance to F, there was no contract of sale, and so the auctioneer was not liable.

The offeror may attach any conditions to his offer but must communicate them to the offeree before they bind him by his acceptance of the offer. In commercial agreement, this rule is chiefly important where the terms of the offer are usually of a complex nature.

An offer must be distinguished from:

• An invitation to treat
• A mere declaration of an intention
• A mere supply of information

Marked prices of goods displayed in shop windows or catalogs mentioning prices of goods at the market prices. The prospective buyer, by offering that price is himself the offeror and his offer, if accepted, creates a binding agreement(Sealy, 2000).

Pharmaceutical Society of Britain V Boots Chemist, 1953

Goods were sold in B’s shop under the self-service system. Customers selected their purchases from the shelves, put them into baskets supplied by B and took them to the cash desk where they paid the price. Held the customer made the offer when he presented them at the cash desk, and not when he removed them from the shelves.

Fisher V Bell, 1961

B, a shopkeeper, displayed a flick knife priced at four shillings in his shop window. He was charged with offering for sale an offensive weapon contrary to the Restriction of Offensive weapons Act. Held that mere display of the goods in a shop window is not by itself an offer for sale. B was not bound to sell the knife to nay one entering his shop and offering him four shillings(Sealy, 2000).

Where a person expresses or declares his intention to do a thing or an act, it does not bind him to another person who suffers damage because he fails to carry out his intention despite the fact that someone relied on his declaration and acted on it(Gower and Davies, 2006).

Harris V Nickerson, 1873

N, an auctioneer, advertised that there would be a sale of office furniture.

H, a prospective buyer, traveled from London to attend the sale, but all the office furniture was withdrawn. H thereupon sued the auctioneer for the loss of time and travel expenses. Held that the auctioneer was not bound to sell not making an offer which my acceptance could is turned into a contract.

The mere statement of the lowest price at which a person will sell property or goods contains no implied condition to sell at that price to the person making such inquiry (Sealy, 2000).

Harvey V Facey, 1893

In this case, H telegraphed to F: “will you sell Bumper Hall pen?

Telegraph lowest cash price” F, replied: “lowest cash price for Bumper Hall pen is $ 900”. H Telegraphed back “we agree to buy for $ 900 asked by you. F refused to sell and H sued him contending that a telegram constituted a binding contract. It was held that H was not entitled to damages as in replying, he was merely stating the lowest cash price and not making an offer.

Offer may be terminated by revocation i.e an offer may be revoked by the person who has made it at any time before it has been accepted. A bid at an auction is revocable until the hammer falls.

Where the offeror promises orally or in writing to keep his offer open for a specified time, he is not bound by it i.e he can still revoke it at any time before the expiration of that time unless:

• The offer has already been accepted
• The promise to keep the offer open is supported by consideration i.e. the offeree paid some money or money’s worth to the offeror to keep his offer open for a specified period.
• The promise to keep the offer open was made under seal. A promise under seal does not require consideration.

A promise to keep an offer open for a certain specified time is called an option, and we have seen above that it is not binding on the offeror unless either it is under seal or some consideration has been given for it to the offeror.

Analysis of the Case

From the case, an advert was made to the whole world, not to a specific person. It could be described as an invitation to treat. I will advise Andy that he is not liable for anything.

• if Andy is his young brother the position will be the same if he is at age of entering into a contract.
• if Cassey dies before he is brought then the subject matter of the contract is revoked.

In order to a contract, an offer must be accepted. Where the acceptor various the terms it amounts to a counteroffer and the offer is terminated. I will further advise the sales on various ways in which an enforceable contract can be made. One of the ways is to offer and acceptance without changing terms. The acceptance must also be communicated to the offerer in a manner prescribed by the offeror. Lastly, it must be within the time specified.

Gower, L, & Davies, P, 2006. Principles of Modern Company Law . New York: Sweet and Maxwell

Macdonald, E, & Koffman, L, 2007. The Law of Contract , Oxford: Oxford University Press.

Sealy, L, C, 2000. Jordans Cases and materials in Company law , London: Butterworth’s Heinemann

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