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Monday, February 15, 2010

Deciding When To Decide - Appellate Procedure and Legal Change

Suppose you are a judge on the court of appeals.  The case before you concerns some rule or doctrine from a thirty-year-old case, X v. Y.  A couple of months ago, the Supreme Court granted certiorari in a case that also concerns the rule in X v. Y.  You are almost certain the Supreme Court will repudiate X v. Y.  (Perhaps last year the Court harshly criticized the old rule in considered dicta and suggested it was ripe for overruling in an appropriate case.)  What should you do? 

A helpful agent might suppose that the best approach is to decide every case by asking, What would SCOTUS do?  If that is the right question to ask, it would be clear to you that you should not follow X v. Y.  All the same, you also know that the Supreme Court itself has cautioned that lower courts should not be proactive in overruling but should instead wait for the Court itself to deal the final blow to a staggering precedent.  So, dutifully, you follow the existing precedent of X v. Y.  A few months later, the Supreme Court inters X v. Y.

When commentators discuss this problem, the issue is typically framed in terms of whether anticipatory overruling is desirable or appropriate; more generally, the debate concerns whether lower courts should attempt to predict how the Supreme Court would decide a case or instead must strictly follow existing precedents.  Those are good questions, but framing the problem this way overlooks another dimension of the problem.  Rather than now ruling in either direction, the lower court could just wait until after the Supreme Court decision and then rule accordingly.  To be sure, waiting might not always be the right choice.  The point is just that the lower court has to choose not just which way to decide, but when to decide.

If this problem interests you, I have just posted a draft paper addressing these topics here.  The abstract follows:

Legal change is a fact of life.  The need to deal with legal change has spawned a number of complicated bodies of doctrine.  Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent.  How such questions are answered affects the size and the distribution of the costs of legal change.  Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions.  In particular, this Article focuses on lower courts’ discretionary decisions about when to decide the cases that come before them: should lower courts continue to decide cases in the regular course even when a change in law is in the offing, or should they delay adjudication until after the dust has settled? 

The Article has both positive and normative aspects.  It begins by drawing together several bodies of doctrine in order to present a unified account of what we can call our system’s law of legal change.  The Article then presents a case study of the six-month interval between Blakely v. Washington, which invalidated a state sentencing scheme and cast substantial doubt on federal sentencing guidelines, and United States v. Booker, which then held Blakely applicable to the federal system.  A majority of the appellate courts that addressed the question upheld the federal guidelines during this transitional interval.  Beneath the surface, however, the various courts upholding the guidelines managed cases very differently.  Some circuits bore much of the cost of legal change themselves, while others shifted some of the cost to litigants and other courts.  Based on the insights gleaned from this episode, I suggest a framework for evaluating and perhaps improving how courts process cases during transitional periods.  Case management decisions are highly context-specific, which makes it difficult and perhaps undesirable to formulate general rules, but we might be able to improve courts’ handling of such matters by altering the institutional environment and modifying incentives.


Posted by Aaron Bruhl on February 15, 2010 at 10:14 AM in Civil Procedure, Judicial Process | Permalink


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Responding to Andy: Good question. Yes, the loser under the old law, who might now be a winner under the new law, should try to get a GVR (grant, vacate, and remand in light of the new precedent). Often this happens. Other times it does not happen, either because the party doesn't have a savvy attorney or for various other reasons. In those cases, we then have a wrong (that is, newly wrong) judgment that sticks. When there is a GVR, the case will ultimately come out "right," though with the expense of a trip to the Supreme Court, which could have been avoided if the lower court had handled things differently.
By the way, for fans of Supreme Court procedure, I will be planning two posts on GVRs for the next week or so.

Posted by: Aaron Bruhl | Feb 15, 2010 3:55:15 PM

In these cases, does the loser successfully file for cert and get a short "remand to reconsider in light of our decision in our new opinion that overrules X v. Y" as a matter of course? or does the supreme court grant these types of remands rarely?

i suppose there are other hurdles, too. the app court may have relied on things other than X v. Y, so even on remand the petitioner would lose. but perhaps that suggests (in theory) that the fact that the Court held whatever it did in X v. Y was harmless.

interesting issues.

Posted by: andy | Feb 15, 2010 1:18:40 PM

Thank you for your comments. You're right that the hypo is stylized. The degree of uncertainty will, as a descriptive matter, affect how lower courts behave. Prescriptively, it probably should, too (along with other factors that the court should consider). One of the things I discuss in the article is how courts are, for a variety of reasons, unlikely to optimally balance the various factors at play in any given case.

Posted by: Aaron Bruhl | Feb 15, 2010 12:50:48 PM

Thanks, Aaron. I wonder how much of the difficulty is in the level of uncertainty. In your hypo, the Circuit Court is "almost certain" that the Supreme Court will overturn the precedent. But how often are we that sure about what the Court will do? Not very often, I would say: We can expect the Court to do something, but there are always surprises, uncertainties, and the possibility of very narrow decisions. Thats especially true for lower court judges who often don't follow the Supreme Court as closely as many academics do.

Posted by: Orin Kerr | Feb 15, 2010 12:21:06 PM

Yes, that is what I would have thought, too. (Great minds think alike?) But, it turns out that sometimes courts wait, and sometimes they don't. And rarely do they tell us why they've decided to do one rather than the other. That's why I find this so interesting.
A slight twist on this involves death penalty cases. Suppose the execution is lawful under existing circuit law, but the Supreme Court is currently considering a case that could change that circuit precedent. Do you stay the execution and hold the case in abeyance? One might think so, given the risk of irreparable harm. But not all courts wait; indeed, some have a policy of not waiting. (Of course, the condemned inmate could try to get an emergency stay from the Supreme Court, but that doesn't always work either, and it adds a procedural hoop to jump through.)

Posted by: Aaron Bruhl | Feb 15, 2010 11:57:24 AM

Isn't this what judges generally do already? (When I read your first paragraph, I thought, "You hold the case until the Supreme Court decides the case, right?")

Posted by: Orin Kerr | Feb 15, 2010 11:25:45 AM

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