RECAP Already Proving Its Power?

Deven Desai

Deven Desai is an associate professor of law and ethics at the Scheller College of Business, Georgia Institute of Technology. He was also the first, and to date, only Academic Research Counsel at Google, Inc., and a Visiting Fellow at Princeton University’s Center for Information Technology Policy. He is a graduate of U.C. Berkeley and the Yale Law School. Professor Desai’s scholarship examines how business interests, new technology, and economic theories shape privacy and intellectual property law and where those arguments explain productivity or where they fail to capture society’s interest in the free flow of information and development. His work has appeared in leading law reviews and journals including the Georgetown Law Journal, Minnesota Law Review, Notre Dame Law Review, Wisconsin Law Review, and U.C. Davis Law Review.

You may also like...

5 Responses

  1. Max Kennerly says:

    Thanks for the link. To be clear, I meant “law” in that phrase in the broadest sense. Not in the narrow sense merely of reasoning which must or may be cited by a later court, but in the sense of what the courts actually did, what factored in the resolution of the dispute between the parties, and what influences the actions of later parties, lawyers and courts.

    For example, the arguments adopted by the court there (and the fact they were adopted) already has, and will in the future, influence the lawyers in other similar premises liability electric shock / electrocution cases. Indeed, one could argue the “vacated” opinions are still good law, and that the sole change is the need to append to any citation “vacated pending appeal solely as the result of a settlement agreement.”

  2. Mike Zimmer says:

    The whole idea of “unpublished” opinions that are in fact published seems antithetical to the rule of law. “Unpublishing” published opinions takes this to one step further of absurdity.

  3. Deven says:

    Max, interesting view. But as Mike suggests, are we in a world where precedent is becoming illusory or at least quite a broad idea? One can cite to unpublished work but judges can disfavor that action. Still as you point out, those opinions can help one fashion an argument that may work better with a new judge. Dissents might be seen in a similar light: opinions that guide an attorney regarding a possible avenue to pursue in a future case. I believe Rehnquist’s dissenting opinions could be a good example of that type of event.

  4. Max Kennerly says:

    I don’t see how it’s even possible to have a world of “illusory” precedent, since I find it implausible a court could ever wholly distance itself from the persuasive impact of precedent, even vacated and overruled precedent. Take, for example, Judge Posner’s recent reference to the fact that Justice Souter, the author of Twombly, dissented in Iqbal. Such is not a minor point, and it appears to have influenced Posner heavily, despite clearly being non-binding and even having a negative persuasive impact since it was an argument rejected by the majority.

    As I wrote, law, once made, cannot be unmade. There is no way to unring the bell that the Eastern District of Pennsylvania once broadly interpreted premises liability theory in the context of a 17 year old electrocuted by a railroad catenary line. The fact that the opinions were later “vacated” for completely unknown reasons related to a settlement is relevant to a later court, but it cannot erase from a later court’s mind the fact that, once upon a time, these arguments worked and were never overruled.

  5. Deven says:

    I don’t think we really disagree. Your broad notion of law is interesting but conflates a Supreme Court dissent with a district court opinion. Judges will as you say look at everything before them but I don’t think they will weigh them the same. In a different light, we claim that juries should disregard information. We are told that a court will not take X, Y, or Z into consideration. All of these aspects of the law claim that in fact if a court says one cannot cite to A, B, or C as the vourt will not consider it, then one cannot do it.

    That being said, of course if one takes an argument and presents it to a court (or just makes the argument that has been vacated) a judge may agree.

    The key to being unrung today is that someone is trying to remove any trace of the ruling so that one could not use it in the future. In that sense it is interesting that RECAP and your efforts have curtailed the ability to expunge a case that might have instructive value.