Legal Theory Blog: Legal Theory Lexicon: Open and Contested Questions of Law

Introduction

First-year law students may come into law school believing that they will learn "the law"--a body of settled rules that decide cases. But early on, they are likely to discover that many legal questions are open to dispute and others have never been addressed by an appellate court. Sometimes there is "settled law." But some questions are open and others are contested.

This installment in the Legal Theory Lexicon takes a look at open and contested questions of law and contrasts these two categories with law that is settled or binding As always, the the Lexicon is aimed at law students, especially first-year law students, with an interest in legal theory.

Open Questions of Law

What is an "open question of law"? Let's start with a relatively simple example from an opinion by Judge Sweet of the United States District Court for the Southern District of New York. The case involves a question about the application of the Fifth Amendment right against compelled self-incrimination in the context of private papers in light of binding precedent that addressed the application of the Fifth Amendment to business records. Here is how Judge Sweet used the phrase "open question of law":

The Second Circuit has followed the Fisher–Doe analysis in In Re Proceedings before August 6, 1984 Grand Jury . . . and affirmed the district court's order directing the witness to produce a tape recording, found to be a business record, that the defendant had made of conversations between himself and others pursuant to an act-of production immunity order. . . . The Court of Appeals, however, expressly stated that the question of whether the Fifth Amendment protects the contents of private non-business papers had been left open in Fisher and remained open in this Circuit. Accordingly, to the extent the documents subpoenaed are non-business records, movant's motion to quash presents an open question of law.

In re Grand Jury Subpoena Duces Tecum Dated May 9, 1990, 741 F. Supp. 1059, 1064–65 (S.D.N.Y. 1990) (citations omitted and emphasis added). From the perspective of the District Court judge, the question whether private non-business papers was open, because there was no controlling precedent on the question.

Open questions of law arise in the context of vertical stare decisis, where the question is whether a lower court is bound by the holding of the opinion of a higher courts, but they also can arise in the context of horizontal stare decisis. For example, a three-judge panel of the Second Circuit could be faced with the same open question as was Judge Sweet--and so could the United States Supreme Court. Unlike a District Court judge who is bound by precedent from the relevant Circuit and from the Supreme Court, the Supreme Court itself is not bound by horizontal stare decisis.

Nonetheless, there is an important difference between legal questions the Supreme Court has previously decided and those which are open, even when the court is one of last resort and does not consider itself bound by its own prior decisions. At the very least, courts of last resort consider their own prior decisions to be presumptively valid, and they may go further and give them considerable "weight."

The question as to what constitutes a holding is the the subject of another entry in the Lexicon. A question of law is open if it is not governed by a prior holding that has either vertical or horizontal stare decisis effect.

Contested Questions of Law

Contested questions of law are conceptually distinct from open questions. A question of law is contested if it is the subject of current disagreement and dispute. Importantly, questions of law may be contested, even though there is a controlling precedent from the relevant court of last resort. For example, the constitutionality of the death penalty under the Eighth Amendment was actively contested by the Justices of the United States Supreme Court, both before and after Furman v. Georgia, a 5-4 decision that invalidated all the death penalty statutes that were in place at the time of the decision. Some Justices believed that the death penalty was always unconstitutional; others believed that Furman was wrongly decided. The Justices continued to disagree and dissent despite the fact that there was a controlling decision that bound the lower federal courts. When Furman was eventually overruled, the question continued to be contested for some time.

If the law is contested, it is contested by some group. For practical purposes, it matters very much who is contesting. For example, if some question comes before the Supreme Court and is resolved by a nine to zero decision, the fact that a group of law professors or political pundits disagree may not have much practical significance. But if the Supreme Court decides an issue by a five to four decision and the dissenting Justices continue to press their argument in subsequent cases, that fact has practical consequences. Lawyers may continue to argument the point in their briefs to the Supreme Court, and the Justices may continue to argue and deliberate about the contested question. Justices may change their minds or newly appointed Justices may tip the balance on the issue.

The contestedness of a question may vary over time. Academic critics of the death penalty continue to press their points, but there is no active campaign by a group of Justices on the Supreme Court to overrule the decisions holding that the the death penalty is not per se unconstitutional. By way of contrast, Roe v. Wade was actively contested by the Justices despite the fact that the Supreme Court has declined to overrule it on many occasions over a period of decades. Dobbs eventually overruled Roe, but the validity of Dobbs continues to be actively contested

The Relationship Between Open and Contested Questions of Law

Some questions of law are neither open nor actively contested. Such questions are settled in the fullest sense of "settled law." Other questions are both open and contested: there is no controlling precedent and the relevant judges disagree about what the legal norm ought to be. And yet other questions of law are open (there is no controlling precedent), but uncontested--all of the relevant judges agree about what the rule ought to be. And finally, there are questions of law that are contested despite the fact that they are not open.

Settled Law

The distinction between open and contested questions of sheds light on another important concept--the notion of "settled law." Because a question of law can be contested even if it is not open, "settled law" is not identical with the set of legal issues upon which there are controlling precedents. Moreover, settled law can become "unsettled" if lawyers and judges begin to question the correctness of holdings that are binding (in the vertical stare decisis context). The process of unsettling law is sometimes related to large movements in legal theory. For example, if the Supreme Court's approach to statutory interpretation and construction shifts from a mixture of purposivism and intentionalism to textualism, then many questions of statutory interpretation that are not "open" may become "contested."

In addition, there may be settled law, even on questions that are technically open. Consider an issue of law that has not been addressed by the Supreme Court or the Courts of Appeal. Suppose that many District Courts have addressed the question and that they all come out the same way. Remember, District Court decisions have no stare decisis--even within the district in which the decision was rendered. Now add the fact that the question is uncontested; no one is arguing that all the District Courts have gotten it wrong. The law on this question is settled--even though it involves an open question of law.

How Do Courts Decide Questions of Law that Are Both Open and Contested?

When the law is both open and contested, two things are true: (1) there is no controlling precedent and (2) there is a first-order disagreement about what the legal norm ought to be. How are such questions resolved by courts? Judges might vote their policy preferences--and surely they sometimes do. But many judges believe that it is improper for a judge to resolve and open and contested question based on their personal preferences. Such judges may resort to second-order legal theories to resolve first-order questions. For example, if the open and contested question involves a statute, the judge might look to a theory of statutory interpretation and construction such as textualism, purposivism, or intentionalism. In Similarly, if there is an open and contested question of constitutional law, the judge might look to the original public meaning of the constitutional text, on the one hand, or look to some form of living constitutionalism, on the other.

Of course, judges disagree about which second-order legal theories are best. Some judges are statutory textualists, but others believe that they are bound by legislative intent; yet others attempt to discover the objective purpose of the statute. Moreover, there are judges who are pragmatists or pluralists about statutory interpretation. In other words, the question as to which second-order theory of statutory interpretation and construction is best is itself a contested question of legal theory. And the same is true for second-order theories of the common law and of constitutional interpretation and constructions.

This fact is important for lawyers. Lawyers almost always try to argue that their client is entitled to win on the basis of existing caselaw, but when there is an open and contested question of law, appeals to the cases and preexisting black-letter law will not suffice. Good advocates recognize this fact, but it is not uncommon to read a brief that claims that an obviously open question of law was resolved in a prior case.

Moreover, the existence of open and contested questions of law might also be important to law students, who might be inclined to approach law school exams via the familiar IRAC formulate. The problem arises at the "R" (rule) step, because if the exam includes an open and contested question of law, there is no "R"--no preexisting legal norm that resolves the question.

Conclusion

Lawyers, law students, judges, and legal scholars all need the ability to recognize open and contested questions of law. Of course, lawyers sometimes given advice about or litigate questions that are neither open nor contested and judges decide such questions. For legal scholars, it is a bit different. Traditional doctrinal scholarship--especially treatise writing--includes case crunching that synthesizes the black letter law. But most modern legal scholarship that addresses first-order questions of law addresses questions that are open, contested, or both.

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