May 2011 Vol. 109 No. 7 THE REVIEW

Stipulating the Law

Gary Lawson

In Free Enterprise Fund v. Public Company Accounting Oversight Board, the Supreme Court decided important questions of structural constitutionalism on the assumption, shared by all of the parties, that members of the Securities and Exchange Commission are not removable at will by the president. Four Justices strongly challenged the majority's willingness to accept what amounts to a stipulation by the parties to a controlling issue of law. As a general matter, the American legal system does not allow parties to stipulate to legal conclusions, though it welcomes and encourages stipulations to matters of fact. I argue that one ought to take seriously the idea that stipulations of law should be as integral a part of the adjudicative process as stipulations of fact-or, at the minimum, that the acceptance of stipulations of law rests on defensible assumptions about the nature of adjudication as a mechanism for resolving disputes rather than as a mechanism for declaring the law or expressing public values. Objections to the wide use of legal stipulations often focus on the potential third-party effects of adjudication, primarily (though not exclusively) through precedent. Those objections generally assume a contestable theory of precedent that emanates from a law-declaring rather than a dispute-resolving theory of adjudication. It is quite possible for a theory of precedent to accompany a dispute-resolution model of adjudication without raising (undue) concerns about externalities in accepting legal stipulations. Thus, the legal system should consider extending the degree to which it enables parties to control the legal issues decided by courts.

 

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