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Why is it inconsistent? Assume a court of
appeals that, after briefing and argument, carefully considers the merits
question in case A and holds X. The judgment in case A is
not binding on lower courts and future panels dealing with different
parties. Nor does the judgment have res judicata effect in such future
cases. The holding X, however, is deemed "binding" in future
cases, precisely because the first panel came to conclusion X after
full briefing, argument and consideration (assuming, of course, that
the holding was not contradicted (reversed) by the court sitting
en banc or by a higher court).
Now let's say a higher court subsequently
determines that the court of appeals should never have considered case A (or the
"merits" questions) at all -- either becauise the plaintiff didn't have
standing, or because the court didn't have jurisdiction, or because the case
wasn't ripe, etc. The effect of this reversal, or vacatur, might be that
the judgment no longer has any operative effect. But why should
the precedential effect of the holding change? After all, it was
the court's reasoning -- not its judgment -- that "bound" lower courts, and
other panels, in future cases.
----- Original Message -----
Sent: Wednesday, September 14, 2005 7:50
PM
Subject: Re: New Pledge of Allegiance
Case, and precential effect of Ninth Cir cuit's earlier Newdow decision
The District Court opinion did not identify a Ninth Circuit
rule of precedent on this issue and seemed to be discussing the question as a
matter of general law. I don't know whether the kind of rule Marty describes
exists here.
I think Justice Steven's opinion in Newdow reads very much
like the Court does not think the resolution of this case by the Ninth Circuit
on the merits was appropriate. Stevens writes, ""In our view, it is improper
for the federal courts to entertain a claim by a plaintiff whose
standing to sue is founded on family law . . . . When hard questions of
domestic relations are sure to affect the outcome, the prudent course is for
the federal court to stay its hand rather than to reach out to resolve a
weighty question of federal constitutional law."
That language seems to
me to be inconsistent with the idea that the Ninth Circuit's decision should
still be considered binding law in the Circuit.
Alan
Brownstein
At 07:12 PM 9/14/2005 -0400, you wrote:
Severl
folks in this thread are writing as if there is some inherent, or
consistent, "right" answer to the question of whether the CTA9 merits
decision in Newdow is "binding" on district courts "within" that
circuit -- or, presumably, on future Ninth Circuit panels -- and whether it
makes a difference that the panel decision was "reversed" (on prudential
standing grounds), rather than "vacated."
But if I'm not mistaken, whether the prior decision is
"binding" in a future case -- two different questions, really: whether
a "lower" court in some sense "must" follow it, and whether it triggers the
rules of stare decisis for future panels of the same appellate court -- is
solely a function of whatever rules of precedent the Court of Appeals
chooses to implement. These would be analogous to the "rules" the U.S.
Supreme Court has developed to govern (i) when lower courts must follow
various dispositions of the SCOTUS (holdings declared in majority or
plurality opinions; affirmances by an equally divided Court; cert. denials;
etc.) and (ii) when the SCOTUS itself should apply stare decisis. (I'm
putting aside here the question whether "higher" courts in fact have the
constitutional power to insist that "lower" federal courts follow their
precedents at all -- the famous counterexample is the district court's
(ultimately vindicated) refusal to follow Gobitis. There are
those who have argued that the basic Agostini/Rodriguez de
Quijas rule -- that lower courts cannot anticipate the SCOTUS's
overruling of "governing" precedent -- is illegitimate -- but I'm assuming
here that it's not.)
I don't
know what the Ninth Circuit's rules are in this respect -- but frankly, I
don't see any good reason to treat a prior merits opinion that has
been "reversed" on prudential standing grounds any differently for purposes
of "binding" precedent than if the same opinion had not been appealed (or
cert. had been denied). Are Alan and David "unconvinced" that the
Court of Appeals has such a rule (which may well be so -- I don't know), or
is it their view that the CTA9 cannot have such a
rule?
Having said all that, I do
agree that the question the district court ought to ask is whether, under
CTA9 rules, it is "bound" by a circuit-wide rule of precedent. If it's
not bound, then the court's job is not to "predict" what the next CTA9 panel
would do, but is instead to attempt to discern how the case should be
decided based on the precedents -- of the SCOTUS and the CTA9 -- that
are "binding."
----- Original Message -----
From: "David Cruz" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu>
Sent: Wednesday, September 14, 2005 4:46
PM
Subject: Re: New Pledge of Allegiance
Case, and precential effect of Ninth Cir cuit's earlier Newdow
decision
>
> I too am unconvinced. If the Court reverses a lower court, it
says it was
> wrong for the lower court to have reached the
merits. Treating a decision
> that wrongly reached the merits as
BINDING seems fishy, at best. Guess
> I'll have to look up the
lower court law on prudential reversals.
>
> David B.
Cruz
> Professor of Law
> University of Southern California Law
School
> Los Angeles, CA 90089-0071
> U.S.A.
>
> On
Wed, 14 Sep 2005, A.E. Brownstein wrote:
>
>> The story is
correct. The Supreme Court did not vacate the Ninth Circuit's
>>
decision in Newdow. It reversed it. The District Judge in the new
case
>> argues that a reversal on prudential standing grounds does
not disturb the
>> merits of the Ninth Circuit decision as
precedent. "In sum, because a court
>> may reach the merits despite
a lack of prudential standing, it follows that
>> where an opinion
is reversed on prudential standing grounds, the remaining
>>
portion of the circuit court's decision binds the district courts
below."
>>
>> I am unconvinced.
>>
>>
Alan Brownstein
>> UC Davis
>
>
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list cannot be viewed as private. Anyone can subscribe to the list and
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>
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wrongly) forward the messages to others.
_______________________________________________
To post, send
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To subscribe, unsubscribe, change
options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note
that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
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