Courtesy of Flickr user steakpinballThe first time I heard the words "stare decisis" was my in my first term at law school in a rainy corner of England. My tutor explained that stare decisis is an accepted legal convention by which courts are bound by previous decisions they have made and by those of higher courts – also known as binding precedent.
The purpose of this principle is to ensure legal certainty and fairness for litigants. It also means there is a built-in check on judicial activism, so that society is less likely to end up with 'Judge made law'.
In United Kingdom courts, stare decisis is an accepted convention in judicial decision-making, and is only occasionally challenged. So, as a lawyer working on whistleblowing issues in the UK, I was very interested to come across this term several years after law school when I attended The Matthew Fogg Symposia on the Vitality of Stare Decisis in America in October, an event sponsored by the National Forum of Judicial Accountability (NFoJA) and GAP at the University of Baltimore.
The relationship between whistleblowing cases and stare decisis is not a connection that I have made while practicing in the UK. While there have been moments of judicial activism in UK courts (most notably, Lord Denning sitting in the Court of Appeal during the 1970s), our courts will generally defer to Parliament and recognize that law-making should be left to the legislature. So I was surprised to attend a conference dedicated to the issue of stare decisis, and to learn that that this was problematic for US whistleblowers.
During the conference, GAP Legal Director Tom Devine provided a clear analysis of what is happening to American whistleblowers when taking claims through administrative boards or the courts. He painted a concerning picture of hostile judicial activism, as courts often fail to adhere to statute and undermine the rule of law –even going so far as to create statutory loopholes. He cited two examples in which activist judges have gone beyond ordinary legal definitions, and have actually limited the protection for federal whistleblowers.
For instance, the definition for disclosures that are prohibited by law has been widened from statutes to include regulations made by Federal Agencies. This means that gag orders issued by agency regulations can cancel legal rights enacted by Congress and signed by the President. This limits protection for whistleblowers, as seen in the case of US Federal Air Marshal Robert MacLean.
Another example where federal courts have eroded whistleblower protection is by introducing a heavy burden of proof on whistleblowers, who can now only overcome the presumption of the government acting fairly by "irrefragable" proof – a burden so high it means that individuals have to have "undeniable, incontrovertible" proof that of wrongdoing that is "incapable of being overthrown." (The term "irrefragable" was created to describe King George's authority over the colonies.) This goes far beyond ordinary civil burdens of proof, and even is a far higher bar than convicting a defendant of criminal misconduct.
For this reason, GAP and its coalition of partners have continued to campaign tirelessly for Congress to reaffirm the protection of whistleblowers in previous statutes and to move whistleblower cases from the jurisdiction of the Federal Circuit Court of Appeals to all-circuits review.
I contrasted the experience of Tom and GAP with that of UK whistleblowers. The nature of the challenges facing UK whistleblowers are varied: the lack of transparency surrounding whistleblower claims once filed with the courts, the use of gagging clauses by employers (despite being outlawed), the increasing threat of cost awards, and the rising cost and complexity in taking legal claims.
Yet UK whistleblowers do not face the uncertainties posed by judicial activism and the failure to follow the established legal principle of stare decisis. This may be partly because judges in the UK are not political appointees unlike some of their American counterparts.
For the rule of law to function properly, the judiciary must follow a system of binding precedent, as it is the best way to ensure fairness and certainty for all individuals who are seeking justice. This is a principle that all law students, no matter what jurisdiction, learn in their first term. And it's certainly a lesson that should not be forgotten.
Maybe a gentle reminder to the US judiciary would help to achieve a better outcome for more whistleblowers.
Shonali Routray is a Pegasus Scholar & Legal Director of Public Concern at Work (PCaW), the UK's leading NGO focusing on whistleblowing. You can read PCaW's most recent review on whistleblowing in the UK here.
This post is from a guest blogger, and not GAP staff. If you are interested in authoring a guest post related to whistleblowing, please email Blog Editor & GAP Communications Director Dylan Blaylock at dylanb@whistleblower.org with your idea.
