From: "Marty Lederman" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>,"Law & Religion issues for Law Academics"
<religionlaw@lists.ucla.edu>
Subject: New Pledge of Allegiance Case -- What Does "Binding" Mean, Anyway?
Date: Fri, 16 Sep 2005 00:45:29 -0400
1. My understanding (although this could be mistaken) is that there was a
case or controversy in Newdow -- the only thing missing was "prudential"
standing.
2. In any event, even if it were later determined that there had been no
case or controversy, I don't see why it would follow that "the entire
decision [on the merits] is dicta": The merits decision was fully briefed
and argued (by "competent" parties), and, more importantly, carefully
considered by the panel. Thus, the reasons that classic dicta is deemed
unreliable -- and hence nonbinding -- are not present. (Indeed, clear
holdings of a panel are often thought to be "binding" even if the issue was
not briefed at all.)
3. It is often the case that a holding not necessary to resolve the
controversy is deemed "binding" on lower courts and future panels -- for
instance, whenever there are alternative grounds for decision, either one
of which would be sufficient to support the judgment. So that can't be the
test of "bindingness," either.
4. In any case, when the first panel reached the merits in Newdow, it did
so on the assumption that the resolution of the merits was necessary to
resolve the case or controversy. To be sure, it may have later turned out
that that was not true -- because the case could have been resolved on
prudential standing grounds -- but that's the case whenever a decision is
reversed "on other grounds," and in most such cases the holding that was
left undisturbed is treated as binding in later cases, if I'm not mistaken
(the district court cites the CTA9 decision in Durning to this effect --
but I haven't researched the question).
5. Returning back to the broader question, Stuart writes that a court of
appeals decision "is binding on a district court because lower courts have
to follow higher courts." Well, the lower court "followed" the higher
court here, so that's not a problem. I'm increasingly, wondering, however,
whether any of this discussion (my own included) makes any sense at all.
Here's a brief explanation why -- but I'd welcome the input of fedcourts
experts in case I'm way off-base here.
Contrary to common understanding (and Stuart's first sentence), a trial
court in the Eastern District of California, such as this one, does not
"have to" follow the decisions of most "higher courts." It doesn't deem
"binding" the decisions of the Court of Appeals for the Eighth Circuit, or
of the California Supreme Court, for instance. It generally treats as
"binding" the decisions of the Ninth Circuit, but not, I think, because
there's some legal or constitutional obligation to do so -- contra
Rodriguez de Quijas. The reason the district court in the EDCal treats the
decisions of the CTA9 as "binding" is that its judgment may, of course, be
appealed to the CTA9, and a new panel of the CTA9 itself will be required
-- by internal CTA9 rules -- to follow the previous CTA9 decision.
Therefore, as a practical matter, it does not make much sense for the trial
court to issue a decision in conflict with the holding of a CTA9 panel,
because such a decision is very likely not to be sustained on appeal -- by
virtue of the court of appeals' own internal stare decisis rules. Very
likely, but not inevitable. The district court might predict, or hope,
that the Ninth Circuit will reverse the prior ruling en banc, or that the
Supreme Court will take the new case and reverse the prior CTA9 holding --
in which case perhaps it makes sense for the district court not to follow
the "governing" holding (cf. Gobitis/Barnette). It would be a nightmare if
district courts took a flyer on such a possibility all the time -- and
courts of appeals would not look kindly on the practice -- and so it rarely
happens. But I'm not sure there's any legal impediment to a lower court
doing so.
If I'm right about this, the only reason -- and it's a pragmatic one, I
think -- for a district court in the EDCal to treat the Newdow "holding" of
the CTA9 panel as "binding" is if the next CTA9 panel would itself be
bound, under CTA9 rules, to follow the earlier Newdow decision. For the
reasons I've been trying to articulate in the paragraphs above and in my
prior posts, I think the CTA9 ought to treat its prior Newdow opinion as
"binding" on future panels, because that holding is not materially
distinguishable from other CTA9 panel holdings -- e.g., those that are not
appealed, those that are reversed on other grounds, etc. -- that are deemed
binding on the next CTA9 panel. It was reached with the same care after
complete briefing and argument; not reversed or called into question by the
SCOTUS; etc. But "ought" isn't "is." The court of appeals could adopt a
stare decisis rule that draws distinctions among its prior holdings that
doesn'I appear to make any sense to me. I don't have the faintest idea
whether, under internal CTA9 rules and/or practice, the Newdow decision
will be binding on future CTA9 panels. If it is, then the district court
probably should have followed it. If not, then there was no need for the
district court to treat it as "binding." The answer to the question,
however, depends entirely on the vagaries of the court of appeals' internal
rules for binding future panels -- it can't be discerned from first
principles, or from the Constitution.
----- Original Message -----
From: "Stuart BUCK" <[EMAIL PROTECTED]>
To: <religionlaw@lists.ucla.edu>
Sent: Thursday, September 15, 2005 12:08 PM
Subject: Re: New Pledge of Allegiance Case, and precential effect of Ninth
Cir cuit's earlier Newdow decision
> 1. A court of appeals decision is binding on a district court because
lower
> courts have to follow higher courts. If there's any discretion as to
the
> scope of that rule, the discretion would lie not with the lower courts
but
> somewhere else (i.e., the appeals court's own rules as to precedent, or
> possibly Congress (see Michael Stokes Paulsen's interesting article in
YLJ
> on similar questions)). Pragmatically, of course, if a district court
> decides to ignore the court of appeals' prior decisions or to construe
those
> decisions narrowly or to manipulate the line between holdings and dicta,
it
> may or may not get away with it.
>
> But speaking of dicta, the reason that dicta is not binding is because
it
> involves reasoning that wasn't necessary to resolve the actual
> case/controversy between the parties. So for the same reason that dicta
is
> not binding, a court of appeals' decision is not binding where there is
no
> case or controversy. Put another way, if the case/controversy
disappears,
> the entire decision is dicta.
>
> 2. A panel's decision is binding on future panels because of the
circuit's
> own rules to that effect (all circuits have such a rule, I believe).
The
> very reason for this rule is that, as we all know, a panel's disposition
of
> a particular issue might be different depending on who is randomly
selected
> to be on that panel. To avoid the spectre of inconsistent rules of law
> governing a single circuit, subsequent panels are supposed to follow the
> first panel to resolve a particular issue. (If you could always count
on
> different panels to resolve the same issue in the same way, you wouldn't
> need a rule of precedent in the first place.)
>
> Again, where the previous panel's decision is entirely dicta, I see no
> reason that subsequent panels would be bound by it.
>
>
> Best,
> Stuart
>
>
>
>
>>From: [EMAIL PROTECTED]
>>To: [EMAIL PROTECTED],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: Thu, 15 Sep 2005 15:18:05 +0000
>>
>>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.
