About | HeinOnline Law Journal Library | HeinOnline Law Journal Library | HeinOnline
LOG IN
LOG IN

29 N.Y.U. L. Rev. 1122 (1954)
Note

handle is hein.journals/nylr29 and id is 1132 raw text is: NOTE PRECEDENTS-SUB SILENTIO: THE LURKING PROBLEM.-An attempt to solve the problem of predicting the outcome of specific cases must take into ac- count the fact that prior court decisions are traditionally an essential in- gredient in resolving the issues presented in a case. In general, if a court determines that a case before it involves a situation legally similar to that of a case decided previously, the prior decision will be followed. The prob- lem of predictability in a legal system thus based on precedents is compli- cated by the recognition in a case of issues which also existed in prior cases, but which were not formerly recognized or expressly decided. The follow- ing discussion is concerned with the effect as precedents of these prior de. cisions, which passed on such issues silently. What Is a Sub Silentio Decision? The determination of a question of law is said to have been made sub silentio when an issue is decided under silence; without any notice being taken.' There are two requirements for this occurrence: (1) that the court could not have arrived at its conclusion without passing on the issue, and (2) that neither counsel nor the court discussed the issue. Illustratively, let us assume a case with the following facts:2 A judge of the Court of Claims brings an action to recover a sum he has paid in income taxes, claiming a violation of Article III, Section 1, of the Constitution, which provides that judges shall receive a Compensation, which shall not be diminished during their Continuance in Office. The court holds for plaintiff, but neither the court nor counsel discusses the question of whether the Court of Claims is a constitutional court established under Article III. The decision for plaintiff could not have been made without passing on this question, since, if the Court of Claims were not a constitutional court, plaintiff could have no standing under Article III of the Constitution. Since plaintiff was given his remedy, clearly necessary to the court's holding is the proposition of law that the Court of Claims is a constitutional court, and, since this issue was not discussed by counsel or the court, the requirements have been met for a question passed on sub silentio. Will later courts follow this holding that the Court of Claims is a con- stitutional court?3 This query, restated in general terms, is the subject mat- ter of this note: What is the generative power of sub silentio decisions?4 I Black, Law Dictionary (3d ed. 1933) gives this literal definition of the phrase sub silentio. 2 Miles v. Graham, 268 U.S. 501 (1925), is the case upon which this illustra- tion is based. 3 Ex parte Bakelite Corp., 279 U.S. 438, 455 (1929), and Williams v. United States, 289 U.S. 553, 569 (1933), discussed this question, and the latter case, in effect, overruled the Miles case. 4 The phrase generative power is borrowed from Cardozo, The Nature of the judicial Process 21 (1921). In the life of the mind as in life elsewhere, there is a ten- dency toward the reproduction of kind. Every judgment has a generative power. Imaged with the Permission of N.Y.U. Law Review

What Is HeinOnline?

HeinOnline is a subscription-based resource containing thousands of academic and legal journals from inception; complete coverage of government documents such as U.S. Statutes at Large, U.S. Code, Federal Register, Code of Federal Regulations, U.S. Reports, and much more. Documents are image-based, fully searchable PDFs with the authority of print combined with the accessibility of a user-friendly and powerful database. For more information, request a quote or trial for your organization below.



Short-term subscription options include 24 hours, 48 hours, or 1 week to HeinOnline.

Purchase Access

Contact us for annual subscription options:

Contact Us

Already a HeinOnline Subscriber?

Log In

profiles profiles most