DRAFT Please do not quote or cite without written permission statutory character of law, the proliferation of legal issues, and the explosionof judicial dockets. We could see an number of linked results from these challenges a heightening of judicial discretion over what issues get decided; an emphasis then on law-making rather than case-deciding as the basis on which this discretion gets exercised; a dramatically lowered exposure of trial and intermediate courts to principled public correction; and a temptation for the high court, then, to speak in simple terms it might expect to have broad impact rather than respond to the subtle particulars ofcomplex facts. I want just briefly to set thes challenges and their results before you, and then turn to some recent Supreme Court decisions that may illustrate the troubles, and shed some light on Justice Scalia's sandoval claim There are many important differences between todays courts and those the Framers might have imagined- our very ideas about such matters as precedent and stare decisis, as Judge Alex Kozinski pointed out in an interesting opinion published last month, owe a great deal to conventions about the writing and publication of opinions that did not emerge until the Nineteenth Century. Among the most mportant of these differences, in my judgment, is the conversion of appellate review into a discretionary exercise substantially controlled, for its own ends, by the reviewing court. We have conferred on the judiciary's highest levels essentially free choice whento act; and our expectations are that they will choose with reference to law-making rather than party claim to justice. Whether we imagine judicial lawmaking as secondary or primary, these changes transform and deeply challenge the rationales we have for tolerating it. Prior to this century, to the extent people understood that courts independently shaped the law, they would have understood that this function- what we can call the common law function- emerged from the necessity to decide cases according to reason driven by party fact. This was a passive function, a corollary of the obligation to decide, according to reason, any matters that parties put before them. One looked first to established principle to the force of stare decisis; if existing law did not control, the court still had to decide-and the absence of controlling principle did not entail an automatic judgment for defendant. Rather, the court was then to look to considerations of justice what analogy to the established structures of law best fit the facts on whichthe court was compelled to render decision-and of policy-what outcome would best govern future cases that the court could imagine following upon this one, once decision in the pending matter had acquired precedential force. The obligation to decide not only excused the judicial presumption in lawmaking- new law was merely and unavoidably its byproduct, the preferable alternative to automatically dismissing claims not previously provided for-the obligation to 7 Hart y Masanari s But see Edward Hartnett, Questioning Certiorari 9 Viz., "It is admitted that there is no precedent for the present action by a servant against a master.We are therefore to decide the question upon general principles, and in doing so we are at liberty to look at the consequences of a decision the one way or the other. " Priestly v. Fowler, 3 Mees, Wells 1, 150 Eng Rep. 1030 (Exchequer of Pleas 1837)DRAFT Please do not quote or cite without written permission 7 Hart v. Massanari 8 But see Edward Hartnett, Questioning Certiorari 9 Viz., “It is admitted that there is no precedent for the present action by a servant against a master. We are therefore to decide the question upon general principles, and in doing so we are at liberty to look at the consequences of a decision the one way or the other.” Priestly v. Fowler, 3 Mees, & Wells 1, 150 Eng.Rep. 1030 (Exchequer of Pleas 1837). -4- statutorycharacter oflaw, the proliferation oflegalissues, and the explosionofjudicialdockets. We could see an number of linked results from these challenges:a heightening ofjudicial discretion over what issues get decided; an emphasis then on law-making rather than case-deciding as the basis on which this discretion gets exercised; a dramatically lowered exposure of trial and intermediate courts to principled public correction; and a temptationforthe highcourt, then, to speak insimple terms it might expect to have broad impact ratherthanrespond to the subtle particulars of complexfacts. I want just briefly to set these challenges and their results before you, and then turn to some recent Supreme Court decisions that may illustrate the troubles, and shed some light on Justice Scalia’s Sandoval claim. There are many important differences between today’s courts and those the Framers might have imagined – our very ideas about such matters as precedent and stare decisis, as Judge Alex Kozinski pointed out in an interesting opinion published last month, 7 owe a great deal to conventions about the writing and publication of opinions that did not emerge until the Nineteenth Century. Among the most important of these differences, in my judgment, is the conversion of appellate review into a discretionary exercise substantially controlled, for its own ends, by the reviewing court.8 We have conferred on the judiciary’s highest levels essentially free choice whento act; and our expectations are that theywill choose with reference to law-making rather than party claim to justice. Whether we imagine judicial lawmaking as secondary or primary, these changes transform and deeply challenge the rationales we have for tolerating it. Prior to this century, to the extent people understood that courts independently shaped the law, they would have understood that thisfunction– what we can call the common law function– emerged fromthe necessity to decide cases according to reason driven by party fact. This was a passive function, a corollary of the obligation to decide, according to reason, any matters that parties put before them. One looked first to established principle, to the force of stare decisis; if existing law did not control, the court still had to decide – and the absence of controlling principle did not entail an automatic judgment for defendant.9 Rather, the court was then to look to considerations of justice – what analogy to the established structures of law best fit the facts onwhichthe court was compelled to render decision – and of policy – what outcome would best govern future cases that the court could imagine following upon this one, once decision in the pending matter had acquired precedential force. The obligation to decide not only excused the judicialpresumptioninlawmaking – new law was merely and unavoidably its byproduct, the preferable alternative to automatically dismissing claims not previously provided for – the obligation to