Settled Law

52 Pages Posted: 14 Nov 2020

See all articles by Alex Nunn

Alex Nunn

University of Arkansas - School of Law

Alan M. Trammell

Washington and Lee University

Date Written: September 26, 2020

Abstract

“Settled law” appears frequently in judicial opinions — sometimes to refer to binding precedent, sometimes to denote precedent that has acquired a more mystical permanence, and sometimes as a substantive part of legal doctrine. During judicial confirmation hearings, the term is bandied about as Senators, advocacy groups, and nominees discuss judicial philosophy and deeper ideological commitments. But its varying and often contradictory uses have given rise to a concern that settled law is simply a repository for hopelessly disparate ideas. Without definitional precision, it risks becoming nothing more than empty jargon.

We contend that settled law is actually a meaningful concept, even though it does not embody any single, unified idea. First, we argue that controlling law, which essentially corresponds to binding precedent, is a fundamentally distinct concept that is neither synonymous with nor a subset of settled law. Second, we draw on seminal jurisprudential theories to build a taxonomy of five frameworks that capture how legal actors can invoke settled law, both rhetorically and doctrinally. Third, we demonstrate how a clearer understanding of settled law can make doctrine more coherent and administrable. Situating certain doctrines within the appropriate frameworks, and not conflating controlling law and settled law, would resolve myriad doctrinal anomalies. Moreover, greater conceptual precision can improve political rhetoric during the confirmation process by promoting clearer dialogue and discouraging legal actors from talking past one another.

Keywords: settled law, stare decisis, jurisprudence, qualified immunity, plain error, judicial nominations, legal theory

Suggested Citation

Nunn, Alex and Trammell, Alan M., Settled Law (September 26, 2020). Virginia Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3700146 or http://dx.doi.org/10.2139/ssrn.3700146

Alex Nunn

University of Arkansas - School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

Alan M. Trammell (Contact Author)

Washington and Lee University ( email )

204 W Washington St
Lexington, VA 24450
United States

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