Paradox of Self-Amendment by Peter Suber [T]here is such a thing as an unconstitutional decision of the Supreme Court, but it should be considered that it, like an unconstitutional act of the Congress, before it has been declared unconstitutional, has the force of law until it is reversed by the court or repealed by a constitutional amendment. One may ask how this principle differs from the apparently simpler statement that Supreme Court decisions, like other laws, are valid until amended or repealed. See Benjamin N. Cardozo, The Nature of the Judicial Process, Yale University Press, 1921, at p. 129: Judges have, of course, the power, though not the right, to ignore the mandate of a statute [or constitutional rule]....None the less, by that abuse of power, they violate law. If they violate it willfully...they commit a legal wrong...even though the judgment which they have rendered stand. 19. This issue is addressed in Gulf Oil Corp. v. State Mineral Board, 317 So.2d 576, 591 (1975) by the Louisiana Supreme Court using the rules of Louisiana (French) Civil Law. Moreover, interpretive legislation cannot properly be said to divest vested rights, because, under civilian theory, such legislation does not violate the principle of non-retroactivity of laws. The interpretive legislation does not create new rules but merely establishes the meaning that the interpreted statute had from the time of its enactment. It is the original statute, not the interpretive one, that establishes rights and duties. This principle begs the question by assuming that the rights were not actually vested at the time of the later, interpretive act. So it does not answer the question whether reinterpretation can divest vested rights, except possibly by saying, "yes, but under another name." 20. See Salmond on Jurisprudence, 11th ed. by Glanville Williams, Sweet and Maxwell, 1957, at pp. 187f, and 12th ed. by P.J. Fitzgerald, Sweet and MAxwell, 1966, at pp. 118f; A.W.B. Simpson, "The Ratio Decidendi of a Case and the Doctrine of Binding Precedent," in G.G. Guest (ed.), Oxford Essays in Jurisprudence, Oxford University Press, 1961, Chapter VI; Roy L. Stone-de Montpensier, "Logic and Law: The Precedence of Precedents," Minnesota Law Review, 51 (1967) 655-74; John H. Langbein, "Modern Jurisprudence in the House of Lords: The Passing of London Street Tramways," Cornell Law Review, 53 (1968) 806-813. 21. I deliberately use witches rather than Epimenides or more classical liars familiar to philosophers and logicians. The reason is that the theory that witches always lie caused serious paradox and consternation during the 17th witch trials, and particularly in the trial of Urbain Grandier in 1634. These cases brought the liar paradox into law. Richard Popkin believes that the paradoxes of taking the testimony of accused witches led Descartes to formulate the famous Demon argument in the Meditations. Richard H. Popkin, The History of Scepticism from Erasmus to Spinoza, University of California Press, 1979, at pp. 180-81. 22. A self-entrenchment clause need not forbid its own amendment; it may forbid its own review instead. A troublesome example is Section 3 of the (English) Parliament Act of 1911, which permits some bills to be adopted by the Queen and House of Commons without the consent of the House of Lords, and which bars judicial review of all such acts. Whether the entrenched character of such bills helps them overcome paradox in the (proposed and debated) task of abolishing the House of Lords is considered by Peter Mirfield, "Can the House of Lords Lawfully Be Abolished?" Law Quarterly Review, 95 (1979) 36-58, esp. 49. Mirfield concludes that the House of Lords cannot lawfully be abolished. His arguments are challenged by George Winterton, "Is the House of Lords Immortal?" Law Quarterly Review, 95 (1979) 386-92. 23. Similarly, a jury may depart from a judge's instructions and still make its verdict appear consistent with them. As Harry Kalven and Hans Zeisel put it, "The jury, therefore, is able to conduct its revolt from the law within the etiquette of resolving issues of fact." The American Jury, Little, Brown, and Co., 1966, at p. 165. 24. See e.g. Joel B. Grossman, "Social Backgrounds and Judicial Decision-Making," Harvard Law Review, 79 (1966) 1551-64, who cites many earlier studies. Among cases where the correlation was statistically significant, a 1961 study found that Republican judges were more likely than Democrat judges to oppose the defense in criminal cases...administrative agencies in business regulation cases...the claimant in unemployment compensation cases...the finding of constitutional violation in criminal cases...the government in tax cases...the tenant in landlord-tenant disputes...the consumer in sales of goods cases...the injured party in motor vehicle accident cases, and the employee in employee injury cases. Ibid. at p. 1556-57. Note that Grossman is co-editor with Richard S. Wells of a casebook focusing on judicial amendment, op. cit. 25. Kalven and Zeisel, op. cit. at p. 498: Perhaps one reason why the jury exercises its very real power [to depart from binding law] so sparingly is because it is officially told that it has none. See Mortimer R. Kadish and Sanford H. Kadish, Discretion to Disobey: A Study of Lawful Departures From Legal Rules, Stanford University Press, 1973, at p. 65: 110