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Lower Court Application of the “Overruling Law” of Higher Courts

  • John M. Rogers (a1)


The obligation of a court to follow the law of a superior court is commonly taken to be stronger than the obligation of the higher court to respect its own precedent. The Supreme Court has recently asserted this stronger obligation in the most forceful terms. What follows is an attempt to demonstrate that this is wrong as a matter of policy and as a matter of law.



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1. A principle broader than the one stated in the text is that lower courts should never anticipate the overruling of higher court cases. Some commentators have attacked the broader principle while accepting the narrower one. For instance, commentators have argued that anticipation of overruling is sometimes appropriate, but only in circumstances much more limited than simply when the lower court's best determination is that the higher court would overrule. E.g., Bradford, C. Steven, Following Dead Precedent: The Supreme Court's Ill-Advised Rejection of Anticipatory Overruling, 59 Fordham L. Rev. 39, 84 (1990); Kelman, Maurice, The Forte of Precedent in the Lower Courts, 14 Wayne L. Rev. 3, 46, 28 (1967); Note, Lower Court Disavowal of Supreme Court Precedent, 60 Va. L. Rev. 494, 510, 522, 527, 533, 538, 539 (1974). However, a distinction between never acting on a prediction of overruling and sometimes not acting on such a prediction cannot stand up to analysis. For that reason, I have refrained from casting the question in terms of whether lower courts should ever anticipate overruling.

2. Rodriquez de Quijas u Shearson/American Express, 490 U.S. 477, 484 (1989) (“If a precedent of this Court has direct application in a case, yet appears to rest on reasons rejected in some other line of decisions, the Court of Appeals should follow the case which directly controls, leaving to this Court the prerogative of overruling its own decisions”).

3. The argument is foreshadowed briefly in Note, Anticipatory Stare Decisis, 8 Kans. L. Rev. 165, 168 (1959). Weaker versions of the argument have been made by Kniffin, Margaret, Bratz, David, and Bradford, C. Steven. Kniffin, Margaret N., Overruling Supreme Court Precedents: Anticipatory Action by United States Courts of Appeals, 51 Fordham L. Rev. 53 (1982); David C. Bratz. Note, Decisis, Stare in Lower Courts: Predicting the Demise of Supreme Court Precedent, 60 Wash. L. Rev. 87 (1987); Bradford, supra note 1. Both Kniffin and Bratz argue that lower courts may predict overruling on a more or less discretionary basis, and both rely on the absence of a Supreme Court ruling on the practice. 51 Fordham L. Rev. at 56, 59–61; 6O Wash. L. Rev. at 95 n. 32, 100. Professor Kniffin's article suggests guidelines for when prediction is appropriate and contains a useful collection of cases. Professor Bradford criticizes recent Supreme Court statements on the issue in Rodriquez, supra, while apparently accepting them as law. He does not argue for the stronger version of the lower court duty advocated here, although many of his policy arguments cut in the same direction. See note 28, infra. His article contains a helpful and more recent collection of cases.

A Yale Law School student argued in 1941 that lower courts should ask not what the Supreme Court has done, but “What would the Supreme Court do?” in the context of then-recent changes in public law. Note, The Attitude of Lower Courts to Changing Precedents, 50 Yale L. J. 1448, 1458 (1941). This paper demonstrates why that is the correct question. In the early 1970s, a University of Virginia law student argued generally to the contrary. Note, supra note 1.

4. Professor Bradford uses the terms “Vertical stare decisis” for the obligation of a court to follow the holdings of higher courts and “horizontal stare decisis” for the obligation of a court to follow its own holdings. Bradford, , supra note 1, 59 Fordham L. Rev. at 6869.

5. The precedent may have proved unworkable, or any of the other grounds used by courts to overrule precedents may be found.

6. Rodriquez de Quijas v. Shearson/American Express, 490 U.S. 480, 484 (1989).Also compare Hicks v. Miranda, 422 U.S. 332, 344–45 (1975) (“The lower courts are bound by summary decisions by this Court ‘until such time as the Court informs [them] that [they] are not’”) with Edelman V.Jordan, 415 U.S. 651, 671 (1974) (summary affirmance not of same precedential value to Supreme Court as opinion on the merits). See also American Trucking Assns. v. Smith, 496 U.S. 167, 180 (1990).

7. United States v. $639, 558, 955 F.2d 712, 718 (D.C. Cir. 1992); United States v. Bakhtouri. 913 F.2d 1053, 1060 (2d Cir. 1990). cert. denied, 499 U.S. 924 (1991); Swin Resource Systems v. Lycoming Cy., 883 F.2d 245, 255 (3d Cir., 1989), cert. denied, 494 U.S. 1077 (1990); Dehmlow v. Austin Fireworks, 963 F. 2d 941, 947 (7th Cir. 1992); Revenue Cabinet v. CSC Oil Co. 851 S.W. 2d 497, 500 (Ky. App. 1993); Indiana Dept. of Statc Rev. v. Clarke, 571 N.E.2d 287, 289 (Ind. 1991). Professor Bradford has collected numerous other cases. Bradford, , supra note 1, 59 Fordham L. Rev. at 4344 note 21.

8. See Alexander, Larry, Constrained by Precedent, 63 S. Cal L. Rev. 1, 5354 & nn. 6970 (1989); Saunders, Kevin, Informal Fallacies in Legal Argumentation, 44 S. Car. L. Rev. 343, 353 (1993); Ragazzo, Robert A., Reconsidering the Artful Pleading Doctrine, 44 Hastings L. J. 273, 324 (1993).

9. Lest the reader think that no great mind has come to this conclusion, I note that Learned Hand agreed:

It is always embarrassing for a lower court to say whether the time has come to disregard decisions of a higher court, not yet explicitly overruled, because they parallel others in which the higher court has expressed a contrary view. I agree that one should not wait for formal retraction in the face of changes plainly foreshadowed; the higher court may not entertain an appeal in the case before the lower court, or the parties may not choose to appeal. In either event the actual decision will be one which the judges do not believe to be that which the higher court would make. But nothing has yet appeared which satisfies me that the case at bar is of that kind; and, as I have said, I can see no good reason for making any distinction between one kind of federal activity and another. The way out is in quite another direction, and includes both. Nor is it desirable for a lower court to embrace the exhilarating opportunity of anticipating a doctrine which may be in the womb of time, but whose birth is distant; on the contrary I conceive that the measure of its duty is to divine, as best it can, what would be the event of an appeal in the case before it

Spector Motor Serv. v. Walsh, 139 F.2d 809, 823 (L. Hand, J., dissenting) (2d Cir. 1943). vacated sub nom. Spector Motor Serv. v. McLaughlin, 323 U.S. 101 (1944).See also Perkins v. Endicott Johnson Corp. 128 F.2d 208, 217–18 (2d Cir. 1942) (Frank, J.), aff'd, 317 U.S. 501 (1943). Other federal cases in which judges have said that they should, or at least could, anticipate Supreme Court overruling are collected in Bradford, , supra note 1, at 43 n. 19.

10. While my argument requires an examination of the reasons supporting vertically binding precedent—to show that they apply as well to higher court holdings on when cases should be overruled—it is beyond the scope of this article to refute possible arguments against the general requirement that lower courts follow precedent of higher courts, a requirement that most lawyers in any event take for granted.

Following preparation of this article, my attention was drawn to Professor Evan Caminker's recent analysis of the reasons for tower courts to follow higher court precedent. Caminker, Evan H., why Must Inferior Courts Obey Supreme Court Precedents, 46 Stan. L. Rev. 817 (1994). Professor Caminker's conclusion is that the doctrine of hierarchical precedent is ultimately defensible, but not as obviously defensible as the doctrine's strength would suggest Although I disagree with some of his points (see, e.g., infra notes 20, 25, 63), the overall idea is sound that the doctrine is supported by a conjunction of considerations: judicial economy and uniformity in the interpretation and application of the law.

11. In the oft-quoted words of Justice Jackson, “We are not final because we arc infallible, but we are infallible only because we are final,” Brown v. Allen, 344 U.S. 443, 540 (1953) (Jackson. J., concurring in result).

12. All else being equal, multiple member courts are presumably more accurate in the long run than single judges. See Kornhauser, Lewis and Sager, Lawrence. Unpacking the Court, 96 Yale L. J. 82, 8497 (1986); Rogers, John M., “I Vote This Way Because I'm Wrong”: The Supreme Court Justice as Epimenides. 79 Ky. L.J. 439, 474 (19901991).

13. The standing committee of the American Bar Association that evaluates prospective appointments to federal courts, for instance, “may place somewhat less emphasis on the importance of trial experience as a qualification for the appellate courts” and “may evaluate temperament for the appellate courts in slightly different terms.” American Bar Assn., Standing Committee on Federal Judiciary: What It Is and How It Works 3–4 (1988).

14. Professor Caminker also rejects this rationale for binding precedent, on a number of grounds. Caminker, , supra note 10, 46 Stan. L. Rev. at 845–49. He does not rely, however, on the simple failure of the rationale to explain why lower courts defer more to multimember high courts above them than to multimember high courts in different jurisdictions.

15. See Wesley-Smith, Peter, Thrones of Adjudication and the Status of Stare Decisis, in Prece-Dentin Law 73, 79–60 (Goldstein, Latirance, ed. 1987).

16. I am indebted to my colleague Alvin Goldman for his clear statement of this question.

17. Wesley-Smith, , supra note 15, at 81.

18. E.g., ky. Const. § 453; 28 U.S.C. § 453.

19. History has demonstrated the inverse (i.e., that when the system of writ of error from the common law couru in England was chaotic in the early nineteenth century. House of Lords decisions were “not uniformly regarded as strictly binding irrespective of the circumstances”). Evans, Jim, Changtin the Doctrine of Precedent during the Nineteenth Century, in Precedent in Law 35, 4849 (Goldstein, Laurence, ed. 1987). A more modern example of the phenomenon may be found in Oklahoma v. Blevins. 825 P.2d 270 (Okl. Grim. 1992) (where state had a system of separate civil and criminal courts of last resort. Court of Criminal Appeals had to reverse a trial court decision to the effect that a previous Court of Criminal Appeals judgment was wrongly decided).

20. Even in the civil law tradition, where start decisis is theoretically not applicable, a lower court judge will probably follow the decision by a court that is higher in the judicial hierarchy, even if the judge doubts its correctness, in order to avoid reversal. John H. Merryman, The Civil Law Tradition 83 (2d ed. 1985); see also van der Woude, Marc, The Court of First Instance: the first three years, 16 Fordham Intl L.J. 412, 459 (19921993).Compare Professor Caminker's assumption to the contrary. Caminker, supra note 10, 46 Stan. L. Rev. at 826, citing Merryman.

21. For a more elaborate description of consistency as a goal, distinguishing many of the ‘inconsistencies’ we often see in the law, see Rogers, John M. and Molzon, Robert, Some Lessons about the Law fnm Self-Referential Problems in Mathematics, 90 Mich. L. Rev. 992, 9991002 (1992).

22. I assume here that the framers' intent is the proper criterion, but whatever is the proper criterion for interpreting the effect of the statutes setting up hierarchical courts, the conclusion should be the same.

23. Luther v. Borden, 48 U.S. (7 How.) 1, 40 (1849); The Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812). See also Adams v.Adams, [1970] 3 All E.R.572, 591–92; R. v. Ndhlovu, [1968] S. Afr. L.R. 515, 520–23, 535, 543 (High Court of Rhodesia).

24. See text accompanying note 16, supra.

25. Wesley-Smith, , supra note 15, at 81 (Without “vertical” stare decisis, “no legal precept could be safe from amendment by any judge”).

Professor Caminker has argued that judicial economy alone provides a weak rationale for hierarchical precedent. Caminker. supra note 10, 46 Stan. L. Rev. at 839–43. He argues first that the rationale is weak when the likelihood of appellate review is low, 46 Stan. L. Rev. at 841. But when the likelihood of review is low, the inequity-from-inconsistency argument becomes correspondingly stronger. He also argues that there are cases where appeals are just as likely whe ther a lower court follows or ignores precedent, 46 Stan. L. Rev. at 842, for instance where a litigant believes the appellate court will reconsider its own precedent. Id. at 842 n. 104 & 840 n. 93. But these are precisely the cases in which the doctrine of binding precedent—as I argue here—requires the lower court to anticipate whether the appellate court will rule differently.

26. In an earlier draft I used the word “hierarchical” here rallier than “pyramidal.” Alvin Goldman reminded me, however, that a hierarchical system has another benefit. It provides a review by judges who are less intimately involved with the parties and events and who are, therefore, less likely to be influenced by emotional undertones of the dispute. This advantage can be obtained by a hierarchical system, however, in which there are many possible reviewing courts. In a pyramidal court system, review narrows up to a single court, and this pyramidal aspect of a hierarchical system serves the goal of consistency.

27. A logical corollary is that the lower court should predict what the higher court would do if the case were to be appealed. See note 80, infra.

28. Although Professor Bradford's argument in favor of anticipatory overruling is strong, it suffers some from his use of the policies supporting “horizontal” stare decisis to defend his contention regarding the quite different principle of “vertical stare decisis,” or binding precedent. Bradford, , supra note 1, at 7583. It may be more confusing than helpful to say that “[t]he same policies supporting horizontal stare decisis generally support vertical stare decisis.” Bradford, , supra note 1, at 75.

29. Frank, Jerome, Precedents and Stability 267–68 (1950); Hall, Robert S., Do Courts Make Laws, and Should Precedents Command the Obedience of Lower Courts, 51 Am. L. J. 833, 837–38 (1917). For critiques, see Alexander, , supra n. 8, at 812; Benditt, Theodore M., The Rule of Precedent, in Precedent in Law 8991 (Goldstein, Laurance, ed. 1987); Westen, Peter, The Empty Idea of Equality, 95 Harv. L. Rev. 537 (1982);

30. Frank, Jerome, supra note 29, at 268–70; Alexander, Larry, supra note 8, 63 S. Cal. L. Rev. at 8; Benditt, , supra note 29, at 9193.

31. See, e.g., Poterna, Gerald J., Some Roots of our Notion of Precedent, in Precedent in Law 1, 1523 (Goldstein, Laurence, ed. 1987).

32. Frank, Jerome, supra note 29, at 272–74.

33. For descriptions of the body of Overruling Law in particular foreign jurisdictions, see Cross, Rupert and Harris, J. W., Precedent in English Law 125–64 (4th ed. 1991) (British law); Kidd, C. J. F., Stare Decisis in Intermediate Appellate Courts: Practice in the English Court of Appeal, the Australian State Full Courts, and the New Zealand Court of Appeal, 52 Aust. L. J. 274 (1978).

34. E.g., United States v. Dixon. 113 S. Ct. 2849, 125 L.Ed.2d 556, (1993); Payne v. Tennessee, 501 U.S. 808,828 + n. 1 576–77 (1991) (collecting cases).

35. Patterson v. McLean Credit Union, 491 U.S. 164, 172–73 (1988); Edelman v. Jordan, 415 U.S. 651, 671 (1974).

36. United States v. Dixon, 113 S. Ct 2849, 125 L.Ed.2d 556, 573–76 (1993).

37. Church of the Lukumi Babalu Aye v. City of Hialeah, 113 S. Ct. 2217, 2247–48, 61 (1993) (Scuter, J., concurring) (overruling more appropriate when precedent not fully briefed, when the precedential rule was broader than necessary, and when the precedent was recent); Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 480, 484 (1989) (overruling appropriate to achieve a uniform interpretation of similar statutory language and to correct a seriously erroneous interpretation of statutory language that would undermine congressional policy as expressed in other legislation).

38. Benditt, , supra note 29, at 103106.

39. A similar point has been made with respect to British law:

Precedent rules… Derive their authority, not from [the rationes dectdendi of various courts], but from a more widely diffused judicial practice which transcends the outcome of particular cases. To the extent that this practice is settled, they are conceived of as imposing obligations which are as peremptory as any other legal obligations, and in that sense they constitute rules of law. However, they dwell at a higher level than ordinary rules of substantive case-law whose authenticity they control. Cross & Harris, , supra note 33, at 105.

40. E.g., Planned Parenthood of S.E. Pennsylvania v. Casey, 112 S. Ct 2791, 2808–16 (opinion of O'Connor, Kennedy, and Souter.JJ.), 2838–39 (Stevens, J., concurring in part and dissenting in part), 2860–67 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part), 2881–84 (Scalia. J., concurring in the judgment in part and dissenting in part).

41. E.g. Alexander, , supra note 8; Cooper, Charles J., Decisis, Stare: Precedent and Principle in Constitutional Adjudication, 73 Cornell L. J. 401 (1973): Marshall, Lawrence C., Lei Congress Do It”: The Case for an Absolute Rule of Statutory Stare Decisis, 88 Mich. L. Rev. 177 (1989); Eskridge, William N. Jr., The Case of the Amorous Defendant: Criticizing Absolute Stare Decisis for Statutory Cases, 88 Mich. L. Rev. 2450 (1990); Marshall, Lawrence C., Contempt of Congress: A Reply to the Critics of an Absolute Rule of Statutory Decisis, 88 Mich. L. Rev. 2467 (1990); White, Rebecca Hanner, The stare Decisis “Exception” to the Chevron Deference Rule, 44 Fla. L. Rev. 723 (1992); Monaghan, Henry P., Decisis, Stareand Constitutional Adjudication, 88 Colum. L. Rev. 723, 755–73 (1988); Wilson, James C., Altered States: A Comparison of Separation of Powers in the United States and the United Kingdom, 18 Hastings Const. L.Q. 125. 179–87 (1990); Lawson, Gary, Fried, Charles, Amar, Akhil Reed, & Schauer, Frederick, Panel Il: Stare Decisis and Constitutional Meaning. 17 Harv. J. L. & Pub. Pol. 23 (1994).

42. By higher couru, I am referring here to courts to which appeal or other review lies within a hierarchical system.

43. See n. 7, supra. For early nineteenth century English examples, see Evans, , supra note 19, at 50 n. 48.

44. In those political systems where courts are elected (i.e., many states of the Union), courts are nonetheless less politically responsible than the other branches of government. For instance, judicial candidates may not be permitted to express views on the very issues that they will be called on to decide.

45. See Scalia, Antonin, Yankee, Vermont: The APA, the D.C. Circuit and the Supreme Court. 1978 Sup. Ct. Rev. 345 (1978).

46. Both anonymous reviewers of the article raised this argument in slightly different terms: that it has not been shown how accurately lower courts can predict overruling. In the words of one of them, there is little “data” to support the conclusion that “allowing anticipatory overruling would in fact reduce the number of reversals.” Of course, from the perspective of the lower court judge, the conclusion is a truism: The judge predicts and thereby minimizes the chances of reversal. The argument goes, moreover, to the general question of whether courts should predict how higher courts will rule. Such an argument would apply just as strongly to the question of whether a lower court should predict the decisions of the Supreme Court in the area of First Amendment law or due process law as to the question of whether a lower court should predict the Supreme Court's application of overruling law. The thrust of my argument is that if lower couru should predict Supreme Court due process law, they should also predict Supreme Court overruling law. As explained about, supra note 10, it is collateral forme to debate arguments against the general prediction premise (such as “lack of empirical data”), when I need only identify the reasons in support of the general prediction premise in order to demonstrate that whatever underpins the general prediction requirement likewise requires predicting overruling.

47. Indeed, federal courts have long applied the entire law (i.e., including the overruling law) of the states in cases where federal courts must apply state law. See, e.g., Birnbaum v. United States, 588 F.2d 319, 324–26 (2d Cir. 1978); Pulman v. Erie City Manufacturing Co., 338 F.2d 911, 917–23 (5th Cir. 1964). See also Kirk v. Hanes Corp. of North Carolina. 16 F.3d 705, 707 (6th Cir. 1994) (dictum) and Am. Svc. Mut Ins. Co. v. Bottum, 371 F.2d 6, 9 n. 2 (8th Cir. 1967) (dictum).

48. One anonymous reviewer of this article made a similar argument:

Supreme Court decisionmaking is governed by a host of procedural or methodological rules in addition to what might be called substantive rules of law. Three (of many possible) examples include: (i) the disposition of a case is governed by a unitary position embraced by majority of a quorum of Justices (typically five but minimally four); (ii) the Court should, for prudential (Bickelian)reasons, shy from deciding issues of federal law in the first instance; (iii) also for prudential reasons the Court should shy from constitutional proclamations that are unnecessary to resolving the case…. [T]hese rules can be considered part of the “law” guiding Supreme Court decisionmaking even though not part of the law guiding lower court decisions, because their “lawness” attaches peculiarly to the former institution. Indeed, as a practical matter, the first two rules cannot be “laws” guiding trial courts because they are responsive to concerns that are definitionally inapplicable….” [Emphasis in original.]

On the contrary, if a decision is a relied-upon basis for deciding a case one way or another, then it is law and binding to the same extent that any other relied-upon rule of the Supreme Court is binding. The examples used by the reviewer are not counterexamples. For instance, the statement that the rule that the disposition of a case is governed by a unitary position embraced by majority of a quorum of Justices “cannot be ‘law’” is simply wrong. I have recently engaged in some debate, for instance, on the issue of whether the Supreme Court's decisions should be the result of a majority vote of each justice's decision on the result (as opposed to the logical result of questions resolved on an issue-by-issue basis by majority vote). Compare Rogers, supra note 12 (arguing yes) with Post, David and Salop, Steven, Rowing Against the Tidewater: A Theory of Voting by Multijudge Panels. 80 Geo. L.J. 743 (1992) (arguing no) and Kornhauser, Lewis and Sager, Lawrence, The One and the Many: Adjudication in Collegiate Courts, 81 Calif. L. Rev. 1 (1993) (arguing sometimes yes, sometimes no). Whoever is right, lower courts must then apply the law by counting the votes and applying them in the same way that the Supreme Court does. The “practice” thus constitutes law. See for instance the cases cited in Rogers, , supra note 12, 79 Ky. L. J. at 471 and fn. 119, and Maltz, Earl, The Concept of the Doctrine of the Court in Constitutional Law, 16 Ga. L. Rev. 357 (1982).

49. Alfred Mollin, letter to the author at 2, January 26, 1994.

50. Id. at 3.

51. Rodriguez de Quijas v. Shearson/American Express, 490 U.S. 480 (1989). overruling Wilko v. Swan. 346 U.S. 427 (1953).

52. 490 484.

53. 490 U.S. at 486 (Stevens, J., dissenting).

54. For the purposes of this point. I am including remands within the category of reversals.

55. One anonymous reviewer sought to generalize this argument to other “methodological” rules, thereby suggesting that the argument implies the unlikely conclusion that “no methodological rule can ever be vertically binding”:

Suppose, for example, that a lower court interprets a statute using both principles of plain meaning and legislative history, while the appellate court's methodological statements in prior opinions clearly indicate that legislative history should not be consulted. If the appellate court affirms, then any methodological statements in its affirming opinion are clearly dicta. If the appellate court reverses, the lower court could always attribute the reversal to its failure to apply legislative history correctly, and the methodological statements in the appellate court opinion will again be dictum. Applying legislative history in the face of a contrary instruction from an appellate court and applying overruling law in the face of a contrary instruction from an appellate court seem, at first glance, to be errors of the same kind: the lower court in each case is consulting a legal source that the appellate court says should not be consulted by the lower court.

The argument simply misperceives the meaning of dictum and holding. Let us take the example that the reviewer uses. If a lower court applies legislative history while an appellate court does not, the appellate court's method of analysis can very clearly be binding. It need only have been a necessary part of the higher court's reasoning. For instance, the higher court could affirm by disagreeing with the lower court first as to what the legislative history says and second as to whether the legislative history may be consulted. Or the higher court could reverse on the ground that the legislative history may not be considered. In either case the higher court's “method” of reaching its conclusion by rejecting the use of legislative history is holding because it was a necessary element of the higher court's reasoning. When the lower court in a future case finds that the legislative history of another statute could affect its decision, the practice of following the precedent of the higher court will require the lower court, in that jurisdiction, to disregard the legislative history. The “methodological” analysis binds. It is simply wrong to say that in such high court decisions the “methodological” statements about legislative history are dictum. The statements in the example are clearly holding and binding just as much as, for instance, any canon of statutory construction. What is different about a high court telling a lower court to disregard overruling law is that the higher court is telling the lower court not to do as the high court does. A high court does not have the power to do this if a higher court's only power over a lower court stems from the power of affirmance or reversal.

56. E.g., Williams, Dandridge v., 397 U.S. 471. 476 (1970); Dunham, Jaffke v., 352 U.S. 280. 281 (1956).

57. 318 U.S. 80(1943).

58. 332 U.S. 194(1947).

59. E.g. Davis, Kenneth C., Administrative Law Treatise § 14.29 (2nd ed. 1980) (“The first Chenery case established the proposition that when an agency gives the wrong reasons for a decision, the reviewing court must send the case back for a new determination, even though the court might have upheld the order if no reasons had been assigned”).

60. One anonymous reviewer attempted to use administrative law to show that higher and lower courts may apply different methodological rules for determining the law:

[O]ne important decision-making metarule concerns die standard of proof that a tribunal should employ when deciding questions of law. Higher courts often employ different standards of proof than lower courts. [Under Chevron U.S.A. v. Natural Resources Defense Council, 467 U.S. 837 (1984)], appellate courts review many of the legal decisions of administrative tribunals under a highly deferential standard. That is, the appellate court will rule for a particular party as long as that party's legal interpretation is merely reasonable. That does not mean, however, that the lower tribunal should apply that same standard when making the initial decision. Indeed, the lower tribunal should at least be looking for the best interpretation, even if other reasonable interpretations are available. [Emphasis in original.]

This argument is largely disposed of by the discussion of remands and Chenery in the text When an agency has power to exercise discretion rather than simply to ascertain the law, the agency's analysis may properly be different from that of the reviewing court. The theory of Chevron is that the agency has the delegated power to choose among several interpretations of a statute, while the reviewing court's judgment is limited to whether that choice is within the range allowed by Congress. See Chevron. 467 U.S. 837, 843–44; Scalia, , Judicial Deference to Administrative Interpretations of Law, 1989 Duke LJ. 511, 516–17; White, Rebecca Hanner, Time for a New Approach: Why the Judiciary Should Disregard the “Law of the Circuit” When Confronting Nonacquiescence by the NLRB, 69 N.C. L.Rev. 639. 651 n. 78, & 654 (1991). The agency in a Chevron situation is not “deciding a question of law” in the sense I am writing about, but deciding which of several rules permitted by Congress should be chosen by the agency. This is accordingly not a situation where different levels of courts use different methods to decide the same question of law.

61. See, generally, Coenen, Dan T., The Constitutional Case Against Intracircuit Nonacquiescence, 75 Minn. L.Rev. 1339, 1340–51 (1991).

62. Estrcichcr, Samuel and Revesz, Richard L., Nonacquiescence by Federal Administrative Agencies, 98 Yale LJ. 679. 692–99 (1989).

63. E.g., Heckler, Lopez v.. 713 F.2d 1432, 1441 (9th Cir. 1983) (Pregerson.J., concurring). Such judges would doubtless be comparably incensed by Professor Caminker's assertion that “[t]he rule of intracircuit hierarchical precedent… fails to promote… at all” the values of rational administration of public law, equal treatment under the law, and respect for judicial authority. Caminker, , supra note 10, 46 Stan. L. Rev. at 856.

64. Compare, e.g., Estreicher, and Revesz, , supra note 62, at 683, 735–53 (intracircuit nonacquiescence sometimes justifiable to allow the agency to maintain a uniform administration of its governing statute at the agency level) with, e.g., Coenen, supra note 61 (intracircuit nonacquiescence never constitutional). See also White, supra note 60. Numerous other contributions to the debate are cited in Coenen, supra note 61, at 1342–43 n. 7.

65. Estreicher, and Rcvesz, , supra note 62, at 748–49.

66. Diller, Matthew and Morawetz, Nancy, Intracircuit Nonacquiescence and the Breakdottm of the Rule of Law: A Response to Estreicher and Revesz. 99 Yale LJ., 801, 814–15 (1990).

67. Cf. Coenen, , supra note 61, at 1439 & n. 521 (opponent of intracircuit nonacquiescence relying upon the Rodriguez dictum).

68. Figler, Samuel, Note, Executive Agency Nonacquiescence to Judicial Opinions, 61 Geo. Wash. L. Rev. 1664, 1666 n. 14 (1993).

69. Cf. American Trucking Assns. v. Smith, 496 U.S. 167, 185 (1990) (Rodriguez de Qjijas idea applied to public officials). I accept the parallel, though it has been criticized. Merrill, Thomas W., Judicial Opinions as Binding Lata and as Explanations for Judgments, 15 Cardozo L.Rev. 43, 6162, 6567 (1993).

70. Compare Diller, and Morawetz, , supra note 66, at 818–21 & n. 79 (1990), with Estreicher, Samuel and Revesz, Richard L., The Uneasy Case Against intracircuit Acquiescence: A Reply, 99 Yale LJ. 831, 839–42 (1990).

71. One version of this question was presented to me by my colleague Michael Healy. Should a federal district court defer to a panel decision of the court of appeals if the district court believes that the case meets the criteria for en banc review? Most of the federal courts of appeals have held that a panel may not overrule the decision of another panel without an intervening decision either by the Supreme Court or the court of appeals en banc. E.g., In re Smith, 10 F.3d 723. 724 (10th Cir. 1993); United States v. Olness, 9 F.Sd 716. 717 (8th Cir. 1993); United States v. Johnson, 986 F.2d 134,137 (6th Cir.) (Siler, J., concurring), rehearing en banc granted. 996 F.2d 836 (1993); United States v. Moore. 970 F.2d 48.50 (5th Cir. 1992); Delflinger v. Ford Motor Co., 866 F.2d 107, 110 (4th Cir. 1989); Bonner v. City of Prichard, 661 F.2d 1206,1209 (11th Cir. 1981) (en banc); United States v. Doe, 730 F.2d 1529.1531 (D.C.Cir. 1984).

If we think of the court of appeals as one court with an internal process that involves both panel decisions and the possibility of en banc review, then the lower court should simply try to predict how the entire process will result On the other hand, if we think of the en banc court as a court one level higher than the court of appeals panel, and one level lower than the Supreme Court, then the potential difference between panel and en banc decisions presents the district court with a quandary. The very fact that most circuits preclude overruling of another panel without en banc review, however, suggests that the former model is operating. Accord, United States Court of Appeals for the Fourth Circuit Rule 35(c) (rehearing en bane “is a review of the judgment or decision from which review is sought and not a review of the judgment of the panel”). That is, the courts of appeals want to have greater participation of their member judges before certain kinds of decisions are made (overruling decisions); they could conceivably require that other types of cases not be decided without en banc review (e.g., capital cases). The duty of the lower court is to predict how the court ofappeals will ultimately rule, and this means taking into account the possibility of en banc review.

72. That is, just as in Marbury a court's power to apply the law includes the power to apply the Constitution, since the Constitution is law also, a court's power to apply the law also includes the power to apply overruling law, since that is law also.

73. For a description of the new of some British judges thai stare decisis rules are not rules of law, see Cross, Rupert and Harris, J. W., supra note 33, at 114).

74. Eg., Diggs v. Shultz. 470 F.2d 461 (D.C. Cir. 1972), cert. denied, 411 U.S. 931 (1973).

75. Eg., Garcia-Mirv.Meese, 788 F.2d 1446 (11th Cir.), cert. denied, Ferrer-Mazorra v.Meese. 479 U.S. 889 (1986).

76. See Riesenfeld, Stefan, The Doctrine of Self-Executing Treaties and U.S. a Postat Win at Any Price?. 74 Am.J. Intl L. 892 (1980).

77. The Supreme Court has repeatedly noted that “[a]djudication of the constitutionality of congressional enactments has generally been thought beyond the jurisdiction of administrative agencies,” Thunder Bay Coal Co. v. Reich, 114 S.Ct 771, 62 U.S.L.W. 4058, 4062 (U.S., January 19,1994), q quoting johnson v. Robison, 415 U.S. 361, 368 (1974), quoting Oestereich v. Selective Service Bd., 393 U.S. 233, 242 (1968) (Harlan. J., concurring in result).

78. It is in this sense that Cooper v.Aaron, 358 U.S. 1 (1958), is correct. Certainly an agency is no less subject to the law determined by the highest level of potential review than an officer. But it is the very hierarchy of review that demands this, no less for Cooper than for the agency.

79. The Supreme Court has for instance concluded that when the “reviewing body is not the agency itself but an independent commission established exclusively to adjudicate Mine Act disputes,” the rule that agencies do not review the constitutionality of statutes is “not mandatory” and “perhaps of less consequence.” Thunder Bay Coal Co., supra note 77, 62 4062.

80. An anonymous reviewer of this article suggested that lower courts should perhaps instead apply the overruling law of the higher court, but use the lower court's best understanding of the factors prescribed by the higher court, rather than predicting what the higher court would do. When the two standards lead to different results, then the policies underlying binding precedent require thoroughgoing prediction, as explained in the text. Of course, the lower court need not predict whether there will be an appeal, but only predict what the higher court would do if there were an appeal.

The same reviewer raised an argument that tries to tie my argument in a knot If lower courts must predict what the Supreme Court will do because what the Supreme Court holds on appellate review is the law, then maybe the Supreme Court must predict what the Supreme Court will do because it is the law. This perhaps facetious argument is disposed of by the idea that binding precedent is law that derives from the pyramidal structure of courts. Of course the top of the pyramid is not so ruled.


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