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New York, Oct. 25, 2010—The practice of courts using precedents, or stare decisis, from prior decisions to resolve cases is a crucial underpinning of American jurisprudence. But less clear is the role precedent should play outside the courts.
Now, an article
by Professor Trevor W. Morrison
in the Columbia Law Review
looks systematically at the considerations given to precedent by the Justice Department’s Office of Legal Counsel (OLC), which is regarded as the most significant source of legal advice to the President and other components of the Executive Branch.
“[B]ecause many of the issues addressed by OLC are unlikely ever to come before a court in justiciable form,” Morrison writes in the review’s October issue, “OLC’s opinions often represent the final word in those areas unless later overruled by OLC itself, the Attorney General, or the President.”
Morrison, who served in the OLC from 2000-2001, and was an associate White House Counsel in 2009, looked at all of the OLC’s publicly available legal opinions—1,191 in all—from January 1977, the beginning of the Carter administration through January 2010, the end of the first year of the Obama administration. He found that OLC rarely departs from its prior opinions.
Moving from the descriptive to the normative, Morrison argues that precedent has a “legitimate place” in OLC, but that OLC’s location in the Executive Branch “affects both the weight it should accord its precedents and the circumstances in which it should depart from them.”
Specifically, he argues that OLC owes special deference to its precedents on questions of presidential power, which over time contribute to a body of executive practices and traditions that even the courts view as critical sources of the meaning of “the executive Power” vested in the President by Article II of the Constitution.
At the same time, Morrison contends there may be circumstances where OLC could legitimately decide to depart from its precedents in order to accommodate the settled constitutional views of the current President. But the key is to ensure that in doing so, OLC retains sufficient independence that its legal advice remains its own, and not dictated to it by the President or anyone else. This is a delicate balance, but, Morrison argues, it is one that OLC is capable of striking.
To read the full article, click here
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