2003 Articles

Recent Case, Appelate Procedure--Force of Circuit Precedent

Jackson, Robert J.

The nations courts of appeals have struggled to devise coherent approach to harmonizing existing circuit case law with intervening decisions of the Supreme Court. When the Court directly overrules decision of court of appeals it is agreed that the overruled decision loses the force of law But when Supreme Court opinion disfavors circuits jurisprudential theory the courts of appeals must determine to what extent cases relying on the rejected theory remain good law. Recently in Miller Gammie (Gammie JJ) the United States Court of Appeals for the Ninth Circuit sitting en banc adopted an approach that directs three-judge panels to reconsider both panel and en banc decisions that would otherwise be binding precedent when those deci sions are "clearly irreconcilable with the reasoning or theory of intervening higher authority." This test is unbounded and will likely prove impossible to administer result foretold by the Gammie II courts error in concluding that Ninth Circuit absolute immunity jurisprudence was "effectively overruled" by Supreme Court cases entirely compatible with existing circuit decisions. To preserve the predictability and coherence of their jurisprudence courts of appeals should instead adopt default rule that presumes the validity of case law not explicitly overruled by the Supreme Court.