Yes, of course. But in that case -- and in light of the fact that the *judgment* is not binding on future litigants, or on future courts -- what is it, exactly, that makes a holding, or opinion, "binding" on district courts and future panels, in the first place?
> > The quick answer that comes to mind: Because courts have no authority to > issue "holdings" apart from "judgments" in the first place. That is, > federal courts can't issue advisory opinions apart from a genuine case or > controversy under Article III. > > > > >From: "Marty Lederman" <[EMAIL PROTECTED]> > >Reply-To: Law & Religion issues for Law Academics > ><religionlaw@lists.ucla.edu> > >To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu> > >Subject: Re: New Pledge of Allegiance Case,and precential effect of Ninth > >Cir cuit's earlier Newdow decision > >Date: Wed, 14 Sep 2005 20:43:34 -0400 > > > >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 ----- > > From: A.E. Brownstein > > To: Law & Religion issues for Law Academics > > 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 > > > > > > _______________________________________________ > > > To post, send message to Religionlaw@lists.ucla.edu > > > 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. > > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > 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. > > > > > >------------------------------------------------------------------------------ > > > > > > _______________________________________________ > > To post, send message to Religionlaw@lists.ucla.edu > > 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. > > > >_______________________________________________ > >To post, send message to Religionlaw@lists.ucla.edu > >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. > > _________________________________________________________________ > Express yourself instantly with MSN Messenger! Download today - it's FREE! > http://messenger.msn.click-url.com/go/onm00200471ave/direct/01/ > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > 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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu 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.
