Lawrence Solan has posted this draft on SSRN (forthcoming, North Carolina Law Review). Here is the abstract:
In interpreting statutes, judges frequently refer to their obligation to take a back seat to the legislature, and to avoid substituting their own policy preferences for those of the legislature. This principle, “Legislative Primacy,” has been the most significant motivation for the movement against the use of such extrinsic evidence of legislative intent as a statute’s legislative history. This history is not enacted, and can be cherry-picked by judges or anyone else wishing to create a narrative that favors one side or the other.
This article addresses another source of evidence that is not enacted and subject to selective citation: judicial decisions. U.S. judges are relentless in citing themselves as reasons for deciding statutory cases. On occasion, citations demonstrate that the issue before the court has been decided. Most of the time, however, courts cite themselves to demonstrate coherence with a legal narrative, whether the law’s enactment history, the social history surrounding its enactment, the courts’ jurisprudence concerning other issues involving that statute, or the relationship between the law in question and the corpus juris.
Also included are citations to other cases that have employed the various canons of construction, and even cases that have applied everyday language one way or another.
This article has as its goal to evaluate these references in terms of which ones legitimately advance rule of law values. It does so by examining three five-to-four U.S. Supreme Court decisions in detail. Some citation practices, it argues, should be eliminated altogether. Others are legitimate if justified by analogical reasoning. Still others are legitimate as is.
The article further addresses the extent to which the use of citation is a by-product of common law reasoning infiltrating the statutorily-based legal system in which we now live.