Friday, November 7, 2008

"mixed" value for unpublished, nonprecedential cases

On the 'Net: Jessica Slavin (Marquette) blogs about the recent article by Amy Sloan (Baltimore), If You Can’t Beat ‘Em, Join ‘Em:  A Pragmatic Approach to Nonprecedential Opinions in the Federal Appellate Courts, 86 Neb. L. Rev. 895 (2008), available on SSRN. Sloan argues that non-precedential opinions should be accorded not full precedential value, but instead should received a “mixed” treatment, i.e., that “non-precedential opinions [would be] binding unless overruled by a later panel’s precedential opinion.”  She contends that giving non-precedential cases this “‘overrulable’ status” would ensure that the opinions’ precedential weight would “correspond[] to their position within the traditional hierarchy of federal decisional law.”  Slavin makes a number of good observations about the article and concludes with a discussion of recent activity in the Wisconsin courts relevant to this issue.


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