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Thursday, March 02, 2023

It's all about the precedent

Jonathan Adler comments on universal vacatur in the student loan case. He gets at the fundamental (and overlooked) insight in this debate: The prospective non-party effects of a decision arise from precedent, never from the judgment. SCOTUS does not issue (or affirm) universal injunctions; its opinion affirming a particularized injunction in Case1 binds other courts in future cases involving similar issues. The DC Circuit does not issue universal judgments; its opinion in Case1 binds the circuit in future cases involving similar issues (where, Adler argues, Congress gives the D.C. Circuit exclusive jurisdiction). To the extent that disables regional circuits from imposing broader consequences, Congress chose that effect by creating a regional and hierarchical judiciary.

Departmentalism (not mentioned in the arguments or in Adler's piece) makes this compliance practical rather than legal. The executive follows precedent (at least within the circuit) because it chooses to do so, knowing it will otherwise lose when non-compliance returns to the D.C. Circuit.

Posted by Howard Wasserman on March 2, 2023 at 06:54 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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