Structure and precedent.

• Author: Dobbins, Jeffrey C.

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 nonstandard 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.

TABLE OF CONTENTS INTRODUCTION I. THE STANDARD RULES: BINDINGNESS OF PRECEDENT A. A Lexicon of Precedent 1. "Binding Precedent" (Including "Vertical Precedent" and "Strong Stare Decisis") 2. "Horizontal Precedent" or "Stare Decisis" 3. "Persuasive Precedent" B. Federal Court Structure and the Rules of Intracourt Binding Precedent II. NONSTANDARD APPELLATE MODELS AND THE PROBLEM OF PRECEDENT A. The Cross-Circuit Precedential Effect of Decisions in Consolidated Petitions for Review under 28 U.S.C. [section] 2112 1. The Filing and Consolidation of Multiple Petitions for Review 2. The Problem of Precedent in Consolidated Petitions for Review 3. Arguments Favoring the Binding Precedential Effect of Decisions in Consolidated Petitions for Review 4. Arguments Challenging the Binding Precedential Effect of Decisions in Consolidated Petitions for Review 5. Litigation Position of the U.S. Solicitor General B. The Cross-Circuit Precedential Effect of D. C. Circuit Decisions in Exclusive Jurisdiction and "Accelerated Review" Cases C. The Cross-Circuit Precedential Effect of "Hybrid" Questions Decided by the Federal Circuit D. The Precedential Effect of Bankruptcy Appellate Panel Decisions III. THE CONNECTION BETWEEN PRECEDENT, STRUCTURE, AND PROCESS IV. UNDERSTANDING PRECEDENT IN NONSTANDARD APPELLATE STRUCTURES A. Highly Binding Approach/Structure Irrelevant B. Structure-Relevant Approach C. Clear-Statement Approach CONCLUSION: PRECEDENT AS A CONSCIOUS DECISION IN STRUCTURAL REFORM AND INSTITUTIONAL DESIGN INTRODUCTION

The rules that govern the binding precedential effect of judicial decisions are a part of the deep structure of our legal system. (1) They are largely intuitive, taught only in passing at law schools, (2) and are rarely addressed by positive law. (3) While the application of these rules of precedent can be difficult in practice, (4) we rarely struggle with whether a given decision of a court within a particular hierarchy is binding at all.

Our understanding about which decisions can be potentially binding arises out of a standard model of precedent. Under that standard model, we know that, with limited exceptions, (a) lower courts within a geographical jurisdiction are bound by relevant precedent announced by higher courts within that jurisdiction ("vertical" or "hierarchical" precedent), (5) and (b) courts are somewhat more loosely bound by prior relevant decisions issued by their own court ("horizontal" precedent or "stare decisis"). (6) This standard model of precedent largely tracks the standard procedure for civil cases in the United States: district court decisions are reviewed by the intermediate court of appeals for the geographic circuit in which the district court sits, and those appellate decisions are reviewed by the Supreme Court. (7)

That standard model of precedential rules, however, breaks down in the federal system (8) when Congress or the courts alter the standard structure and process of federal appellate review. For example, in matters involving "the relationship between patent law and other federal and state law rights" (9) managed by the Federal Circuit, (10) what precedential effect does a Federal Circuit decision have in the Ninth Circuit? (11) Or, if Congress gives the D.C. Circuit the sole authority to review rules issued by an agency to implement a particular statute, (12) is a panel in a different circuit deciding an enforcement action bound by the D.C. Circuit's interpretation of those rules? When petitions for review of an agency decision are filed in multiple circuits and consolidated in a single circuit pursuant to 28 U.S.C. [section] 2112, is the decision that ultimately issues binding on just that court, on all circuits transferring petitions to that court, or on all courts nationwide?

There are no well-accepted answers to these questions. When Congress or the courts alter our standard model for processing cases, our intuitions regarding the precedential effects of decisions break down. When we are unable to determine whether prior decisions constitute binding precedent, the resulting uncertainty makes it difficult for practitioners to effectively advocate for their cause, interferes with the ability of courts and judges to maintain an appropriate consistency among legal rulings, and undermines the effectiveness of the procedural and structural innovations adopted by Congress.

While one might hope that these questions will be resolved in time, neither the courts nor academic commentators have made much progress. In most instances, the courts have sidestepped the difficulty of evaluating the precedential effect of decisions in these nontraditional appellate processes. When faced with potentially binding decisions outside their circuit, for instance, the federal appellate courts will often merely treat them as persuasive, rather than binding. If a court of appeals chooses not to follow an arguably binding decision of another circuit, the Supreme Court may resolve any resulting conflict on the merits, but once it has done so, there is little reason for it to weigh in on issues of intercircuit precedent. (13) Similarly, most commentators on the problems of precedent have focused on the strength, validity, terms, and variability of the rules of stare decisis, rather than the structural question of whether, within a given appellate hierarchy, a decision is even binding. (14) To the degree that commentators are currently engaged in an examination of stare decisis, the analysis has primarily focused on the role of the Constitution on precedential rules at the Supreme Court level, and has generally, and often explicitly, avoided analysis of the role of intermediate appellate courts in our understanding of precedent. (15) This Article focuses on the rarely asked, and almost never answered, question of whether a given decision in a particular appellate structure should be treated as binding precedent. What structural relationship converts a decision that might be "persuasive" precedent (of any degree) into the status of "binding" precedent?

As an entree into examining this question, Part I outlines a hierarchy of precedent and examines the relationship between our current understanding of precedential rules and the historic development of our federal courts and appellate processes.

Part II then looks at several nonstandard appellate (and court) structures, discusses the precedential problems that arise out of their unusual formats, and notes the competing arguments for whether binding precedential effect should be given to earlier decisions in these cases.

Drawing on the examples in Part II, Part III discusses the strong link between our standard model of precedent and the structure and judicial processes of the court system within which we function. It also illuminates certain unstated presumptions that underlie the standard model, and thereby casts light on appropriate, or at least possible, resolutions of the problems of precedent.

Part IV examines some of the implications arising out of the link between structure and precedent, and focuses on possible approaches to thinking about the binding effect of precedent in nonstandard structures. It then sets forth an optimum default rule for deciding whether a decision should be considered to have "binding" precedential value. In particular, I suggest that the most straightforward approach to these problems is the use of a "clear statement" rule, which rejects any cross-circuit precedential effect unless Congress has clearly indicated a contrary intent. As an initial matter, any rule at all would be preferable to the current guess-as-you-go approach. The Clear-Statement Approach would be easier to apply than most alternatives, would ensure consistency with jurisdictional statutes that limit the scope of nonstandard processes, and would encourage congressional attention to the matter of precedent. Finally, despite the obvious and critical role that federal courts play in implementing our system's rules of precedent, the Clear-Statement Approach is most consistent with the appropriate role of federal courts within our constitutional system. (16)

Finally, the Article concludes by emphasizing two important...