Legal Commentary

Bleg: Judicial Opinion Asides Teeing Up Future Cases?

By Kenneth Anderson

A friend and colleague on my faculty is doing some initial forays into judicial opinions that offer an aside, or a footnote, or some bit of seemingly innocuous language in an opinion that, innocuous in the context of that decision, seems innocuous.  But it sets up a later question, as a sort of ticking time bomb (or as I might put it, a landmine hidden in the underbrush), that triggers or sets up a later opinion.  And which, one might reasonably believe, was there for that purpose.  My friend is looking for examples of this in judicial decisions, if you can think of instances offhand.  Here is how he put it in the email to me and a number of colleagues:

I am doing some research on Supreme Court Justices? (and, to a lesser extent, state and federal appellate judges?) use of ?ticking time  bombs? in their opinions. Could you provide examples in your area(s) of expertise in which a Justice (or judge) uses some apparently innocuous language (often, but not exclusively, in a footnote) to set up a later development in the law ... at which time it becomes clear that the Justice (judge) included that language precisely for that later purpose? Are there some Justices (judges) who are known for this or at least who have done it ?not infrequently??

My work doesn?t involve reading all that many judicial opinions, so I am not so much help on this, but I thought I?d try to help by asking our readers.  One example that might but might not be an example, however, is footnote 20 in the Supreme Court?s Sosa v Alvarez-Machain opinion on the Alien Tort Statute.  Footnote 20 mentions but does not address the question of corporate liability; this is the question taken up by the Second Circuit just last week.  But I?m not sure if this is a ticking time bomb or landmine in the intended sense.  After all, issues not required in the present case are noted and set aside all the time in opinions, and I guess this might simply be a case of that, not what is described above.

If you have suggestions in the way that the quoted language asks for, please mention in the comments.  Serious responses only please.

Full post as published by The Volokh Conspiracy on September 24, 2010 (boomark / email).