Monday, July 26, 2010
Professor Jeffrey C. Dobbins (Willamette University College of Law) has posted "Structure and Precedent" on SSRN. It will be published in the University of Michigan Law Review.
The abstract states:
The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process of federal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit, is the decision that ultimately issues binding on just the deciding court, or is it binding nationwide? The lack of well-accepted answers to this and similar questions undermines the work of practitioners, courts, and Congress.
This Article uses these nonstandard processes and institutions to emphasize a rarely stated observation that will ensure a more careful and rational discussion of precedential rules in the future: the structure of the court system within which decisions are made-the structure of the appellate universe-is critical to defining the rules of binding precedent. After discussing this relationship between structure and precedent, this Article identifies, and argues in favor of, a Clear-Statement Approach to determining the precedential effect of decisions in non-standard appellate structures. This approach encourages Congress to pay attention to the precedential effect of its structural decisions, and highlights the degree to which Congress controls rules of precedent through its control over the structure of the federal judiciary.