Fwd: RE: RE: Effect of the Newdow case on the precedential value of the Ni nth Circuit decision

Samuel Bagenstos bagensto at law.harvard.edu
Mon Jun 14 21:51:38 PDT 2004


>Date: Tue, 15 Jun 2004 00:50:41 -0400
>To: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
>From: Samuel Bagenstos <bagensto at law.harvard.edu>
>Subject: RE: RE: Effect of the Newdow case on the precedential value 
>of  the Ni nth Circuit decision
>
>Well, just on general principles it wouldn't make sense for anything to 
>turn on whether the bottom-line of the SCt's decision says "vacated" or 
>"reversed."  Both a reversal and a vacatur wipe out the judgment below.  A 
>reversal for lack of standing, in particular, seems just like a vacatur as 
>moot (as Mark implies).  In both cases, the court of appeals' opinion 
>doesn't get full review b/c a procedural problem keeps the SCt from 
>reaching the merits.  And in both cases, the Brandeisian (or Bickellian) 
>idea of avoiding touchy or difficult constitutional questions suggests 
>that the court of appeals' decision shouldn't have precedential 
>effect.  Indeed, there's something a little odd about a court of appeals 
>deciding a constitutional question it shouldn't, effectively protecting 
>itself from review of the merits of that decision b/c it shouldn't have 
>reached the question in the first place, and then relying on the decision 
>it shouldn't have made as binding precedent.
>
>CA5's decision in Central Pines does suggest the contrary, but there are 
>really two questions here.  First, is the court there correct to 
>distinguish b/t vacated cases and cases reversed on other grounds?  I have 
>my doubts on that score, for the reasons suggested above -- though it 
>should be noted that Central Pines didn't involve a case that was reversed 
>on justiciability grounds.  Second, would court of appeals judges who 
>wanted to go the other way feel bound by the earlier opinion in a case 
>whose judgment was reversed?  My sense is no, but in the nature of things 
>I can't prove it.
>
>At 08:40 PM 6/14/2004 -0700, you wrote:
>>My intuition was the same as Sam's -- but it turns out there's some 
>>caselaw (such as the case I cited) that suggest that while *vacated* 
>>decisions are treated this way, decisions that are *reversed on other 
>>grounds* do maintain their precedential value.  And the Newdow bottom 
>>line was to reverse, not to vacate.  Or am I missing something?
>>
>>Eugene
>>
>>
>>
>>         -----Original Message-----
>>         From: Samuel Bagenstos [mailto:bagensto at law.harvard.edu]
>>         Sent: Mon 6/14/2004 9:53 PM
>>         To: Mark Tushnet; Sisk, Gregory C.
>>         Cc: Volokh, Eugene; 'conlawprof'
>>         Subject: Re: RE: Effect of the Newdow case on the precedential 
>> value of the Ni nth Circuit decision
>>
>>
>>         Without getting into what courts should do, my sense is that 
>> courts don't do what Mark is suggesting here.  The Ninth Circuit, which 
>> is the relevant circuit here, has previously held that the merits 
>> discussion a vacated opinion is not binding precedent in the analogous 
>> circumstance where the Supreme Court vacated on ripeness grounds.  Roe 
>> v. Anderson, 134 F.3d 1400, 1404 (9th Cir. 1998).  Same where the 
>> Supreme Court vacated an opinion as moot.  Garcia v. Spun Steak Co., 998 
>> F.2d 1480, 1487 n.1 (9th Cir. 1993).  The Roe court did make clear that 
>> the earlier merits discussion would be persuasive authority -- a point 
>> Judge Reinhardt also made in his dissent from denial of en banc in 
>> Garcia -- but it is not binding.  My sense as a person with some 
>> appellate practice experience is that this is the pretty typical 
>> practice.  Once a panel decision is vacated, for whatever reasons, 
>> subsequent panels will no longer treat it as binding.
>>
>>         At 08:01 PM 6/14/2004 -0500, Mark Tushnet wrote:
>>
>>
>>                 I think the analysis has to be a bit more discrete.  For
>>                 example, if the Supreme Court holding is based on the
>>                 political questions doctrine, I agree with the analysis 
>> below
>>                 (although it's hard to see how a subsequent case could be
>>                 brought anyway).  But, where the justiciability issue is
>>                 standing or mootness, which go to who can bring a claim,
>>                 and when, I wonder whether the argument goes through.
>>                 Consider a case brought by two parties, one -- it turns 
>> out,
>>                 -- without standing, the other (it also turns out) with 
>> it.  And
>>                 imagine a litigation posture in which the former is the 
>> only
>>                 party in the Supreme Court (perhaps because the
>>                 opponent settled with the latter).  The Supreme Court
>>                 reverses the appellate court with respect to the only
>>                 litigant before it.  My sense is that the appellate court
>>                 decision on the merits in the other litigant's case 
>> would be
>>                 binding within the circuit.
>>
>>                 Of course, that decision would have been rendered in a
>>                 case in which the appellate court properly had one case
>>                 before it, while in the case at hand it didn't.  And maybe
>>                 that's enough to  deprive the ruling on the merits of 
>> within-
>>                 circuit bindingness.  But my guess is that the issue
>>                 shouldn't be resolved on the basis of large conceptual
>>                 issues like whether the court in the first case "had" a
>>                 constitutional "case" before it, but rather on grounds of
>>                 effective judicial administration -- which is what within-
>>                 circuit bindingness is primarily about (I think).
>>
>>                 ----- Original Message -----
>>                 From: "Sisk, Gregory C." <GCSISK at stthomas.edu>
>>                 Date: Monday, June 14, 2004 8:38 pm
>>                 Subject: RE: Effect of the Newdow case on the
>>                 precedential value of the Ni    nth Circuit decision
>>
>>                 > I understand the rule that when a decision is reversed
>>                 by the
>>                 > Supreme Court
>>                 > on one of many points addressed in a lower-court
>>                 decision that the
>>                 > otherrulings of that lower-court remain precedential in
>>                 that court.
>>                 > In most
>>                 > circumstances that makes perfect sense.
>>                 >
>>                 > But surely that cannot be the case when the reason for
>>                 the reversal
>>                 > is one
>>                 > of justiciability, which goes to the very authority of 
>> the
>>                 lower-
>>                 > court to
>>                 > have pronounced anything on the merits at all.  For the
>>                 Ninth
>>                 > Circuit'sNewdow opinion to have any continuing vitality
>>                 on any
>>                 > issue would make a
>>                 > mockery (I'm tempted to say, it would be a
>>                 "traveshamockery," but that
>>                 > simply reveals that I do pay attention to commercials
>>                 during the
>>                 > NBA finals)
>>                 > of the concept of standing as a limitation on judicial
>>                 authority.
>>                 >
>>                 > Greg Sisk
>>                 >
>>                 > -----Original Message-----
>>                 > From: Volokh, Eugene [VOLOKH at law.ucla.edu]
>>                 > Sent: Monday, June 14, 2004 7:22 PM
>>                 > To: conlawprof
>>                 > Subject: Effect of the Newdow case on the precedential
>>                 value of the
>>                 > NinthCircuit decision
>>                 >
>>                 >       Any thoughts on whether the Ninth Circuit's
>>                 Establishment Clause
>>                 > reasoning in Newdow -- though not the standing
>>                 reasoning, of course
>>                 > --
>>                 > is still binding precedent on other panels, and on 
>> district
>>                 courts in
>>                 > the Ninth Circuit?
>>                 >
>>                 >       I'd think that it wouldn't be binding, but there 
>> seems
>>                 to be
>>                 > some lower court caselaw suggesting that while
>>                 *vacated* decisions
>>                 > aren't binding precedent, decisions reversed on one
>>                 issue remain
>>                 > bindingas to other issues.  See Pines Land Co. v. U.S.,
>>                 274 F.3d
>>                 > 881, 894 n.57
>>                 > (5th Cir.) ("This case illustrates the important 
>> difference
>>                 between
>>                 > ourtreatment of a panel opinion after vacatur by the
>>                 Supreme Court
>>                 > and our
>>                 > treatment when a judgment is reversed on other
>>                 grounds. While our
>>                 > prioropinion in Leiter Minerals II did not bind the 
>> Little
>>                 Lake
>>                 > panel because
>>                 > it was vacated, the opinion in Little Lake binds us
>>                 because only the
>>                 > judgment was reversed on other grounds. Little Lake,
>>                 453 F.2d at 362
>>                 > (reaffirming principles of Leiter Minerals II in face of
>>                 Government's
>>                 > argument that it had no precedential value); Ridley v.
>>                 McCall, 496
>>                 > F.2d213, 214 (5th Cir.1974) (stating that vacated
>>                 opinions have no
>>                 > precedential value); Durning v. Citibank, N.A., 950 F.2d
>>                 1419, 1424
>>                 > n. 2
>>                 > (9th Cir.1991) ('A decision may be reversed on other
>>                 grounds, but a
>>                 > decision that has been vacated has no precedential
>>                 authority
>>                 > whatsoever.').").  Seems odd, but there it is.  Or is the
>>                 matter in
>>                 > anycase different when the Court reverses on standing
>>                 grounds, thus
>>                 > suggesting that the lower court should never have
>>                 reached the merits?
>>                 >
>>                 >       I'd love to hear what others who know more about
>>                 appellate
>>                 > procedure than I do think about this.
>>                 >
>>                 >       Eugene
>>                 >
>>                 _______________________________________________
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>>                 _______________________________________________
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>>
>>                 _______________________________________________
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>>
>>         Samuel R. Bagenstos
>>         Assistant Professor of Law
>>         Harvard Law School
>>         1545 Massachusetts Ave.
>>         Cambridge, MA  02138
>>         (617)495-9299
>
>Samuel R. Bagenstos
>Assistant Professor of Law
>Harvard Law School
>1545 Massachusetts Ave.
>Cambridge, MA  02138
>(617)495-9299

Samuel R. Bagenstos
Assistant Professor of Law
Harvard Law School
1545 Massachusetts Ave.
Cambridge, MA  02138
(617)495-9299 



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