November 8, 2006

Disillusionment of a law student

by Sean Sirrine

Anyone who has read anything that I have written in the last year or so would be liable to say that I'm a card-carrying pessimist. That is why it was so painful for me this week when I read a case that completely disillusioned me of any notion that we are a nation of laws. Instead, we are a nation of policy choices. Now, I was always aware of the political nature of the Judicial Branch of government, but after reading UNITED STATES v. MENDOZA, I now know that the federal government is not bound by any notion "law". UNITED STATES v. MENDOZA, 464 U.S. 154 (1984). Why? because it is more important to allow policy considerations to be made by the government than it is to bind the government to the law:

Under the doctrine of collateral estoppel, once a court has decided an issue of fact or law necessary to its judgment, that decision is conclusive in a subsequent suit based on a different cause of action involving a party to the prior litigation. However, the doctrine of nonmutual offensive collateral estoppel, under which a nonparty to a prior lawsuit may make "offensive" use of collateral estoppel against a party to the prior suit, is limited to private litigants and does not apply against the Government. Id. at 158-159.

In addition to those institutional concerns traditionally considered by the Solicitor General, the panoply of important public issues raised in governmental litigation may quite properly lead successive administrations of the Executive Branch to take differing positions with respect to the resolution of a particular issue. While the Executive Branch must of course defer to the Judicial Branch for final resolution of questions of constitutional law, the former nonetheless controls the progress of Government litigation through the federal courts. It would be idle to pretend that the conduct of Government litigation in all its myriad features, from the decision to file a complaint in the United States district court to the decision to petition for certiorari to review a judgment of the court of appeals, is a wholly mechanical procedure which involves no policy choices whatever. Id. 159-162.

Therefore my fellow travelers in law, if the federal government wins an action, the opinion becomes law to you and me, but not to the government. If they lose the action.... it becomes law for nobody but that one particular party.

Welcome to a government ruled by law.

November 8, 2006 7:29 PM | TrackBack

C'mon, PG, you are not actually upset about this. It doesn't even make sense, does it, to say that the maker of the laws should have to live by previously made laws when it can simply make a new law that says something different? The only restraint on government is, ultimately, the Constitution -- and really that is only effective if people like us are diligent. We sure know we can't count on the general electorate to be.

Posted by: Denise at November 14, 2006 7:34 AM


This was a post by our 1L contributor Sean, not me -- I agree with the Mendoza Court that the government as party in litigation should not be bound by collateral estoppel from raising claims in one suit that it had failed to pursue in another. The United States Government is simply too enormous to regard it like an individual.

Posted by: PG at November 15, 2006 12:46 AM

My bad! I didn't see the byline until I came back again today to look for your comments! :)

Posted by: Denise at November 19, 2006 7:49 AM

Yep, I'm the 1L that thinks this is a problem. Although I agree with PG that the government can't be treated the same as an individual, I find it strange that we seem to think that these rules work just fine for international corporations that change hands over the years.

Frankly Denise, it is my understanding that Congress makes law, not the Executive. If Congress changes the law in between litigation, then the Executive has a reason to bring a new suit. Otherwise they should be bound by the ruling of the court.

Posted by: Sean Sirrine at November 20, 2006 10:18 PM
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