Title: Precedent and Judicial Power After the Founding
Abstract: A recent decision by a panel of the Court of Appeals for the Eighth Circuit enlivened the controversy over court rules that prevent citation to unpublished opinions when it held that the Circuit's noncitation rule violates Article III of the United States Constitution. This Article affirms the view that judicial power includes a doctrine of precedent, without relying solely upon an originalist interpretation of Article HI. This approach identifies a consistent idea of precedent that courts must consider how a similar case was decided in the past, even where there are varying ideas about the binding nature of that precedent. A long-standing tradition has viewed precedent as a necessary starting point for judicial decision. When a court departs from this core idea, it violates the essential function of the judiciary to treat like cases alike or explain the difference. Like a phoenix rising from the ashes of modern legal theory, respect for precedent is poised for a comeback. The evidence is Anastasoff v. United States 1 --an opinion from the Eighth Circuit Court of Appeals that created shockwaves when it invalidated that court's rule against citation of unpublished opinions. Anastasoff announced that the United States Constitution imposes some obligation on federal courts to respect precedent, an obligation that is inconsistent with the current practice of many federal and state courts to consider -unpublished opinions to hold no precedential value. This is a minor issue. In 1999, nearly eighty percent of all federal appellate cases fell into this not for official publication category. 2 Because in most fed* Associate Professor, Emory University School of Law.J.D., Harvard Law School; BA., M.A., Emory University. The author was a law clerk for the lion. Richard S. Arnold, Eighth U.S. Circuit Court of Appeals, from 1989-1991. Thanks to Thomas C. Arthur, David J. Bederman, Harold J. Berman, Anita Bernstein, 0. Price Marshall Jr., and Robert Schapiro for their helpful critiques of earlier drafts, and to Susan I. Jackson, a student at Emory Law School, for sharing her research. 1 Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000), vacated as moot by No. 99— 3917E3,1, 2000 U.S. App. LEXIS 33247 (8th Cir. Dec. 18, 2000) (en bane). 2 United Stales Courts, Judicial Business of the U.S. Conn's: 1999 Annual Report of the Director, Supplemental Tahle S-3, at 49, available al li11p://uww.uscourts.gov/judlms1999/ supps.litinl (last visited Jan. 7, 2001) [hereinafter judiciai Ba.sine.ss}.
Publication Year: 2001
Publication Date: 2001-01-01
Language: en
Type: article
Access and Citation
Cited By Count: 5
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