Sidebar Publishes Response to “Stare Decisis in the Office of Legal Counsel”
Columbia Law Review’s Sidebar is pleased to announce the publication of a response to Professor Trevor W. Morrison’s article, Stare Decisis in the Office of Legal Counsel, by Professor John C. Dehn of the United States Military Academy. In Stare Decisis in the Office of Legal Counsel, Professor Morrison empirically demonstrates that OLC legal opinions serve as a form of binding precedent for that office, and posits that there are many good reasons for giving those opinions stare decisis effect. Professor Dehn responds, addressing only the normative theoretical inquiry and making one essential point: Professor Morrison’s analysis relies heavily upon institutional considerations and potentially problematic OLC perceptions of its role. The response argues that Professor Morrison does not consider, and therefore potentially undervalues, the proper effect of an OLC attorney’s individual ethical and legal obligations. The response details potentially problematic OLC practices as including its identification of the opinion-requesting agency—the President and/or the executive branch—as the client. The response concludes that these factors may generate consistent, executive-friendly error in OLC legal opinions and such error diminishes the interpretive value of OLC precedent.