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Tibbetts v. Sight 'n Sound Appliance Centers9/16/2003
consequences of the settled-law-of-the-case doctrine (and of the issue-preclusion bar) nor of Oklahoma's constitutional restraints on after-crafted lawmaking, which restraints extend to substantive-law changes by jurisprudence no less than they do to those effected by legislative enactment. This assessment expresses the crux of my dissent.
II. FOR ITS REJECTION OF SETTLED LAW OF THE CASE THE COURT INVOKES TODAY A STANDARDLESS TESTING FORMULA
A. The Settled-Law-of-the-Case Doctrine
The court refuses to be bound here by the settled law of the case. It rejects the doctrine as unjust for application to this litigation. "Justice" is interposed as the sine qua non of an adjudication's qualification for settled-law effect.
The settled-law-of-the-case doctrine operates to bar relitigation in the same case of issues that were finally decided through an appellate process. The earlier decision on review becomes binding in all subsequent stages of the case. The doctrine not only ensures absolute consistency of later with former issue resolutions, it also guards against abuse of judicial process by preventing relitigation of issues settled in the course of an earlier appellate stage of the case.
I would not loosen one iota the firm grip of control the reviewing process of correction now wields over postremand proceedings whose course stands charted by an appellate disposition; I would firmly and loudly condemn every unauthorized departure from settled law, either in postremand proceedings at nisi prius or in any other review stages that may follow. I would sanction departures from settled law solely for those issues which are determined not to have been fully and fairly litigated.
B. "Injustice" - The Open-ended Judicial Escape Hatch From Settled Law
Today's pronouncement offers an open-ended judicial escape hatch from the established restraints that the settled-law doctrine imposes. The formula by which the court justifies its departure from settled law - a manifest "injustice" from its application - is patently overbroad and amorphous. Justice is a vacuous and shapeless legal norm that has been dubbed an antonym of due process. Its yardstick is much like that of an empty vat into which one may pour contents at will. It has been defined as a standardless product of the natural-law reasoning process. Subjecting settled law to repeated scrutiny by afterthought based on a vacuous gauge will most surely undermine, if not indeed destroy, interinstitutional deference within the judicial service and the internal discipline among the courts. In short, I join many generations of judges and scholars in rejecting "justice" as an acceptable standard for departure from settled law. As a legal gauge, justice is as deceiving as the shifting sands upon which it is founded.
C. Justice is Gauged by One's Individual Predilection
Is injustice (as a pretense for rejecting settled law) to be measured by an enormity of the mistake in shaping a flawed norm or by the severity of philosophical differences between an earlier-adopted and the later-rejected norm? No matter what measuring tape one will use, justice is but an empty and shapeless legal yardstick whose contours are circumscribed by nothing more than one's individual predilection. I must hence condemn rather than embrace justice as a legal norm. It is not concrete enough. If invoked, it becomes putty in the hands of the shaping applicator. Any authorized departure from settled law should instead be rested on the U.S. Supreme Court's well-established gauge (for applying issue preclusion) by which we must first answer whether the issue whose resolution is to be accept
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