Structure and precedent

Michigan Law Review

Volumn 108, Issue 8, 2010, Pages 1453-1496

  Dobbins, Jeffrey C ^a  

^a WILLAMETTE UNIVERSITY   (United States)

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EID: 77954497260     PISSN: 00262234     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (127)

1. E.g., Mortimer N.S. Sellers, The Doctrine of Precedent in the United States of America, 54 Am. J. Comp. L. 67, 86 (2006) ("The use of precedent by courts in the United States of America . . . is so deeply embedded in the culture of the legal profession and the judiciary that it takes place without much reflection by judges."); see also id. at 72 (noting that application of the common law in American cases, including principles of precedent, "has become so automatic and unreflective in the modern era that it goes almost entirely unexplained, even in the cases that apply it"). In generalizing the idea of precedent, Schauer noted that "[r]eliance on precedent is part of life in general." Frederick Schauer, Precedent, 39 Stan. L. Rev. 571, 572 (1987).
2. A few casebooks include explicit discussions of precedent, and first-year students may enjoy a brief introductory discussion of precedential rules in civil procedure or during orientation. For most law students, however, it is "learn as you go" when it comes to the rules of precedent.
3. But see Frederick G. Kempin, Jr., Precedent and Stare Decisis: The Critical Years, 1800 to 1850, 3 Am. J. Legal Hist. 28, 42-43 (1959) (citing Georgia Act of Dec. 9, 1858, No. 62, § 1 (providing that no case in the state supreme court garnering three votes could be subsequently overturned); Georgia Code of 1861, pt. 1, tit. 5, ch. 2, art. I, § 210 (backing off the 1858 Act, and allowing reversal by the full court after argument and with written decision)). Cf. Constitutional Restoration Act of 2004, H.R. 3799, 108th Cong. § 301 (2d Sess. 2004) (depriving federal courts of jurisdiction over certain Establishment Clause cases and providing that "[a]ny decision of a Federal court which has been made prior to or after the effective date of this Act, to the extent that the decision relates to an issue removed from Federal jurisdiction under section 1260 or 1370 of title 28, United States Code, as added by this Act, is not binding precedent on any State court").
4. For instance, we might ask precisely which language in a written opinion is the "holding" that merits precedential weight, or whether a given decision presents a legal question sufficiently similar to a subsequent case that it must be followed. E.g., United States v. Johnson, 256 F.3d 895, 919-21 (9th Cir. 2001) (Tashima, J., concurring) (disputing which part of an en banc opinion is "holding," and which is "dicta"). Other questions can arise even if the "holding" is obvious. In a Supreme Court decision with a heavily divided vote, for instance, which part of the written decision-if any-is the "holding" and therefore binding on lower courts? See, e.g., Nat'l Mut. Ins. Co. v. Tidewater Transfer Co., 337 U.S. 582 (1949) (deciding, by a 3-2-4 vote, with no theory receiving support from a majority of the justices, and no intermediate position obvious, that citizens of Washington, D.C. could be deemed citizens of a state for purposes of diversity jurisdiction).
5. The term "hierarchical precedent" comes from an article by Evan Caminker. See Evan H. Caminker, Why Must Inferior Courts Obey Superior Court Precedents?, 46 Stan. L. Rev. 817 (1994).
6. E.g., Miller v. Gammie, 335 F.3d 889, 899-901 (9th Cir. 2003) (en banc) (discussing the general rule against panels overruling prior panel decisions of the circuit). This is a stronger version of horizontal precedent than the standard doctrine of stare decisis, which I define as the principle that permits, but generally discourages, the overruling of prior decisions of the same court.
7. See generally Lawrence B. Solum, Stare Decisis, Law of the Case, and Judicial Estoppel, in 18 Moore's Federal Practice para. 134.02 (3d ed. 2009).
8. Similar rules of precedent are also seen at the state level, with trial court decisions reviewed by two (though occasionally only one) layers of appellate courts. See Sellers, supra note 1, at 85-86 ("[T]he rules of precedent applied throughout the United States . . . seem usually to converge . . . ."). For a discussion of the place of state appellate structures, see infra note 16.
9. Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356, 1358-59 (Fed. Cir. 1999) (en banc).
10. 28 U.S.C. § 1295 (2006) (giving Federal Circuit jurisdiction over appeals under 28 U.S.C. § 1338 (2006)).
11. See Midwest Indus., 175 F.3d at 1358-59 (abandoning prior circuit precedent and declining to follow regional circuit precedent in assessing whether patent claims are in conflict with state law or other federal law); infra Section II.C.
12. See, e.g., 42 U.S.C. § 7607(b)(1) (2006) (limiting review of certain Clean Air Act decisions to the D.C. Circuit).
13. See, e.g., Envtl. Def. v. Duke Energy Corp., 549 U.S. 561, 563 (2007) (failing to address the question presented of whether the Fourth Circuit decision violated a Clean Air Act provision mandating exclusive D.C. Circuit review, and instead merely addressing the case on the merits). For further discussion of this case, see The Oyez Project, http://www.oyez.com/cases/2000-2009/2006/2006_05_848 (last visited Feb. 17, 2010). Even if the Court were to weigh in on relevant rules for managing intercircuit precedent, there is an argument that such a discussion would itself be dicta. In Miller v. Gammie, for instance, two concurring judges jousted over whether the en banc court's statements regarding the rules of intracircuit precedent were dicta when the en banc court had also resolved the case on the merits. 335 F.3d 889, 900-01 (9th Cir. 2003) (en banc) (Kozinski, J., concurring); id. at 902-04 (Tashima, J., concurring).
14. Most commentators, in other words, begin with the assumption that a particular decision is precedent, and then ask what that fact means (or should mean) to the courts within the common law and constitutional structures of our legal system. The "precedential" effect of precedent-what is called "stare decisis"-is the primary focus of these articles. See, e.g., Richard W. Murphy, Separation of Powers and the Horizontal Force of Precedent, 78 Notre Dame L. Rev. 1075, 1075 n.2 (2003) (defining stare decisis, but not precedent); Lawrence Solum, Legal Theory Blog, The Case for Strong Stare Decisis, or Why Should Neoformalists Care About Precedent?, http://lsolum.blogspot.com/2003_06_01_lsolum_archive.html#200369898 (June 4, 2003, 05:50 EST) (focusing on stare decisis without discussing the meaning of precedent).
15. As one regular commentator on civil procedure has noted: In recent years, there has been a surprising outpouring of academic literature on the proper role of precedent in constitutional cases. Although some of the commentary addresses the question of 'vertical' stare decisis-the question whether and to what extent higher court precedents should bind lower courts-most observers have focused on the 'horizontal' problem of the effect of a court's own precedents on its future decisions. And even this focus has been narrowed by concentrating on the Supreme Court, leaving the lower federal courts, as well as the state courts, to work things out for themselves. David L. Shapiro, The Role of Precedent in Constitutional Adjudication: An Introspection, 86 Texas L. Rev. 929 (2008) (citation omitted) (Shapiro does not examine the problem of vertical precedent, either). See Murphy, supra note 14, at 1080 n.27 ("[T]his Article confines its attention to the separation-of-powers concerns raised by the elimination of the horizontal force of precedents.") (emphasis in original); Michael Stokes Paulsen, Abrogating Stare Decisis By Statute: May Congress Remove The Precedential Effect of Roe and Casey?, 109 Yale L.J. 1535, 1538 n.8 (2000) ("I set to one side for purposes of this Article the interesting and important question of whether Congress may abrogate (or mandate) 'vertical' stare decisis, in the sense of lower courts' generally accepted obligation to follow the decisions of the Supreme Court and other courts above them in the hierarchical chain of appeal."); Schauer, supra note 1, at 576 (assuming, for purposes of his discussion, that "the past and present decisionmakers are identical or of equal status," and therefore setting aside the question of vertical precedent); see also John McGinnis & Michael Rappaport, Reconciling Originalism & Precedent, 103 NW U. L. Rev. 803 (2009) (discussing role of precedent in early constitutional thought in the United States, not mentioning courts of appeals); Steven G. Calabresi, Text vs. Precedent in Constitutional Law, 31 Harv. J.L. & Pub. Pol'y 947 (2008) (same); Symposium: Precedent & The Roberts Court, 86 N. Carolina L. Rev. 1107 (June 2008) (in 330 pages of symposium articles-albeit one on the Roberts Court-mentioning "circuits" or "courts of appeal"; one interesting exception is Tracey E. George, From Judge to Justice: Social Background Theory and the Supreme Court, 86 N. Carolina L. Rev. 1333 (2008) (focusing on the effect of prior circuit judge experience on the work of subsequently elevated Supreme Court Justices)).
16. The emphasis of this Article is on the federal system, but the general observation regarding the intimate relationship between structure and precedent holds true in state court systems as well. As in the federal system, our understanding of the rules of binding precedent in state systems is dependent, to a substantial degree, on the established state appellate structure. While some states are somewhat different-several do not have intermediate appellate courts, for instance-the general structure, and the general understanding of precedential rules, remains the same. Additional investigation into the relationship between precedent and structure at the state level would be useful, but it is beyond the scope of this Article. Also useful, though beyond the scope of this Article, would be an examination of this issue as a matter of comparative law. As students of comparative law are aware, many civil law countries, which generally eschew the concept of "binding precedent" as used in this Article, also have systems of judicial review that are, from the perspective of attorneys who practice exclusively in the United States, strangely nonlinear and disunified. See, e.g., Interpreting Precedents: A Comparative Study (D. Neil MacCormick & Robert S. Summers eds., 1997) (comparing the structure and approach to precedent in eight different continental European countries, as well as the United States, the United Kingdom, and European community). Germany, for example, has five Supreme Federal Courts for different areas of the law and a Federal Constitutional Tribunal. Robert Alexy & Ralf Dreier, Precedent in the Federal Republic of Germany, in Interpreting Precedents, supra at 17-19. Except for the decisions of its Federal Constitutional Court, there are "no strict rules on the binding force of precedents." Id. at 26. The French system contains two distinct hierarchies of courts: the Court of Cassation (with 84 judges, not counting state attorneys) and the Conseil d'Etat (with 270 members, only about 60 of whom actually decide cases). Michel Troper & Christophe Grzegorczyk, Precedent in France, in Interpreting Precedents, supra at 103, 103-06. "Precedent" never implies a binding decision in the French legal language, because courts are not bound by past decisions. Id. at 111. This Article's observation of the connection between court structure and the rules of precedent is entirely consistent with the different approach to both in many civil law countries.
17. See supra notes 14-15.
18. See Anastasoff v. United States, 223 F.3d 898 (8th Cir. 2000) (holding Eighth Circuit practice of deeming unpublished decisions noncitable to be unconstitutional), vacated en banc, 235 F.3d 1054 (8th Cir. 2000); see also Murphy, supra note 14, at 1080-81 & n.27 (describing literature that argues for due process or equal protection concerns related to the force of precedent).
19. See, e.g., Rico v. Terhune, 63 F. App'x 394, 394 (9th Cir. 2003) (Reinhardt, J., concurring) ("I concur only under compulsion of the Supreme Court decision in [Lockyer v. Andrade, 538 U.S. 63 (2003)]. I believe the sentence is both unconscionable and unconstitutional."); Bageanis v. Am. Bankers Life Assurance Co., 783 F. Supp. 1141, 1149 (N.D. Ill. 1992) ("[I]t is inescapable that Kush is directly on point. That being so, we are not at liberty to question or disagree with [that decision]."). But see, Terhune, 63 F. App'x at 394 (Pregerson, J., dissenting in part) ("In good conscience, I can't vote to go along with the sentence imposed in this case.").
20. Caminker, supra note 5.
21. Solum, supra note 7, para. 134.02[2] & n.26.
22. E.g., Solum, supra note 14. Arguing from a neoformalist perspective, Solum contends that this principle, which he calls "strong stare decisis," should be extended to bind the Supreme Court to its own prior decisions. The application of a doctrine of "strong stare decisis" to Supreme Court decisions, he suggests, would encourage better decisions in the first instance.
23. See Solum, supra note 7, § 134.02[1][c] (noting exceptions to the general rule, which permit panels to ignore prior decisions in the event that intervening Supreme Court decisions cast doubt on the validity of the earlier holding). But see id. at n.15.6 (noting that the Seventh Circuit is unusual in permitting subsequent panels to overrule prior holdings for nothing more than "compelling reasons").
24. See infra notes 31-41 and accompanying text. As noted in this Article, the binding nature of panel decisions on subsequent panels is somewhat anomalous if we look solely at the hierarchical relationship between the panels. An examination of the history of the federal courts, however, reveals that the anomaly is in fact largely consistent with the observation that precedential rules derive from the structural relationships between our courts.
25. Solum, supra note 7, para 134.02[1][a] ("When the prior court is the same as the subsequent court, the general rule is that precedent is not binding, even though a court may give great weight to its own prior decisions.").
26. Id. paras. 134.02[1][b]-[c].
27. Paulsen, supra note 15, at 1537 & n.1 (quoting Seminole Tribe v. Florida, 517 U.S. 44, 63 (1996)).
28. Id. at 1538.
29. This is not to say, of course, that the rules regarding what prior decisions count as binding are themselves fixed. Indeed, much of Part II is directed at examples in which uncertainty regarding whether a decision is binding or not may very well lead to manipulation by courts and legislatures regarding a final decision on that very question.
30. See, e.g., Vu v. Ortho-McNeil Pharm., Inc., 602 F. Supp. 2d 1151, 1154-55 (N.D. Cal. 2009) ("The Court agrees that those cases are not binding authority; however, to the extent that they are on point and to the extent that the Court is not aware of any . . . Ninth Circuit or California state court opinions to the contrary, those cases do serve as persuasive authority."); United States v. Sirotina, 318 F. Supp. 2d 43, 47 (E.D.N.Y. 2004) (noting the relevance of a prior Seventh Circuit decision, but concluding it "is not binding on this Court and is not persuasive" because it misconstrued the relevant law); see also Twin City Fire Ins. Co. v. Ohio Cas. Ins. Co., 480 F.3d 1254, 1260 n.3 (11th Cir. 2007) (analyzing persuasiveness of nonbinding unpublished opinions). It is worth noting that the "persuasive" value of precedent between courts, and the considerations governing that persuasiveness, echo the standards for determining the "degree of respect" due to nonbinding agency interpretations of law. See, e.g., United States v. Mead Corp., 533 U.S. 218, 228 (2001) ("The fair measure of deference to an agency administering its own statute has been understood to vary with circumstances, and courts have looked to the degree of the agency's care, its consistency, formality, and relative expertness, and to the persuasiveness of the agency's position." (citing Skidmore v. Swift & Co., 323 U.S. 134, 139-40 (1944) (other internal citations omitted))).
31. Erwin C. Surrency, History of the Federal Courts 70-72 (2d ed. 2002).
32. E.g., id. at 72 ("The appointment of a second judge did not insure harmonious relations as questions concerning each judge's authority to make appointments and who should hold the sessions of court in the different cities, arose."). Over time, of course, the district courts have made more of an effort to work collectively; the addition of more and more district judges, the historical distance of the single-judge era, the centralized control over district courts in the hands of a chief judge, and even (in a few rare instances) the use of district court en banc sittings have all served to shift the attitude of district judges to a more collective approach. Nevertheless, the old rules of precedent-opinions are binding as stare decisis on yourself, and not at all binding on any others-remain in place in the district courts even today. For a discussion of federal district courts sitting en banc, see John R. Bartels, United States District Courts En Banc-Resolving the Ambiguities, 73 Judicature 40 (1989).
33. See Surrency, supra note 31, at 40.
34. See Surrency, supra note 31, at 40.
35. Id. at 88.
36. Id. at 40.
37. Id. at 87. Even then, however, it was not uncommon for a circuit court of appeals panel to be made up of three district court judges; this held true through the 1940s. Id. at 88 (citing Frank O. Loveland, The Appellate Jurisdiction of the Federal Courts 17 (1911)).
38. Id. at 90. As the number of judges increased, there was substantial discussion about whether it was even appropriate to have decision-making panels made up of fewer than all of the judges in a particular circuit. That discussion was eventually resolved in favor of allowing fewer than all of the judges to sit in panels. See id. at 90-91.
39. This was true until at least 1844, when Congress first permitted district court judges to hold circuit court terms on their own, although even then, the circuit justice was to attend one sitting per year in a given circuit, with the district court judge holding for that sitting the cases that merited participation by the justice. See id. at 53-54. It was only after the first appointment of circuit judges in 1869 that the direct trial responsibilities of the justices were lifted altogether. Id. at 54-55.
40. In the early years of the circuit courts of appeals, there appears to have even been uncertainty regarding the precedential effect of prior circuit court appellate decisions on the decisions of other circuits and on subsequent panels within a particular circuit. For example, an Eighth Circuit Court of Appeals case decided in 1895 noted: It is a principle of general jurisprudence that courts of concurrent or co-ordinate jurisdiction will follow the deliberate decisions of each other, in order to prevent unseemly conflicts, and to preserve uniformity of decision and harmony of action. This principle is nowhere more firmly established or more implicitly followed than in the circuit courts of the United States. A deliberate decision of a question of law by one of these courts is generally treated as a controlling precedent in every federal circuit court in the Union, until it is reversed or modified by an appellate court. Shreve v. Cheesman, 69 F. 785, 790 (8th Cir. 1895) (emphasis added). See John Harrison, The Power of Congress over the Rules of Precedent, 50 Duke L.J. 503, 516 & n.41 (2000), for some discussion on Shreve v Cheesman. By contrast, Surrency notes that "[o]ne of the most frequent objections to the creation of separate Circuit Courts of Appeals was that these courts would reach different conclusions on the same issue." Surrency, supra note 31, at 346; see also id. at 97 (noting the "old argument of conflicts in the decisions of these circuits"). While Surrency does not identify the source of this objection, it seems that there may have been little consensus on the rule which has at least now been resolved in favor of an approach that allows the risk of intercircuit splits to exist.
41. Harrison, supra note 40, at 535.
42. E.g., 15 U.S.C. § 21 (2006) (antitrust-related cease and desist orders); 15 U.S.C. § 2618(a)(1)(A) (2006) (stating categories of rules promulgated under the Toxic Substances Control Act); 28 U.S.C. § 2342 (2006) (granting "exclusive jurisdiction" to the courts of appeals [other than the Federal Circuit] over "all final orders" and other decisions of various agencies, including the FCC, the Federal Maritime Commission, the Atomic Energy Commission, and the Surface Transportation Board); 29 U.S.C. § 160(f) (2006) (decisions of the NLRB).
43. See infra Section I.C.
44. E.g., 28 U.S.C. § 2343 (2006) (establishing venue for petitions for review under 28 U.S.C. § 2342 in "the judicial circuit in which the petitioner resides or has its principal office, or in the United States Court of Appeals for the District of Columbia Circuit"). When a statutory scheme has no judicial review statute specific to it, decisions with a broad effect may be challenged in the district courts under the Administrative Procedure Act, 5 U.S.C. § 701 (2006), and thereafter on appeal in the relevant court of appeals. This Article does not specifically address such situations; instead, it focuses on direct review in the courts of appeals.
45. See, e.g., Authorizing Abbreviated Records In Reviewing Administrative Agency Proceedings: Hearing on H.R. 6788 Before Subcomm. No. 3 of the H. Comm. on the Judiciary, 85th Cong. 57-59 (June 27, 1957) (testimony of Hon. Albert B. Maris) (noting concern and proposed solution to filing of multiple petitions for review).
46. Act of August 28, 1958, Pub. L. No. 85-791, § 2, 72 Stat. 941, 941-42 (codified as amended at 28 U.S.C. § 2112 (2006)).
47. The "primary reviewing court" is my own term, and refers specifically to the court of appeals that ultimately resolves the consolidated petitions for review. This is not necessarily the circuit to which the multiple petitions are initially transferred; as noted below, the court in which petitions are initially consolidated will often transfer them to a different court of appeals for "the convenience of the parties in the interest of justice." 28 U.S.C. § 2112(a)(5) (2006).
48. Id. §§ 2112(a)(1)-(3). From enactment of the 1988 amendment to § 2112, to September 2005, seventy-eight cases had been consolidated by the MDL Panel under 28 U.S.C. § 2112. See Judicial Panel on Multidistrict Litigation, Docket Report (Sept. 2005) (on file with author). Within the MDL electronic docket, these cases are designated as "RTC-xx" cases, with "RTC" standing for "Race to the Courthouse." Id. Before 1988, § 2112 provided that petitions would be consolidated in the circuit in which a petition was first filed. 28 U.S.C. § 2112(a) (1964). This resulted in an unseemly rush to file the first petition for review of a given agency action. Thomas O. McGarity, Multi-Party Forum Shopping for Appellate Review of Administrative Action, 129 U. Pa. L. Rev. 302, 305 (1980). The 1988 amendment, pursuant to which all petitions filed within ten days of the agency decision are treated identically, was enacted to eliminate that race. See Act of Jan. 8, 1988, Pub. L. No. 100-236, 101 Stat. 1731. For a discussion and listing of some of the consolidated cases prior to 1988, and descriptions of some of these races to the courthouse that initiated them, see McGarity, supra, at 319-45. McGarity's article began as a report to the Administrative Conference to the United States recommending changes to § 2112 in order to avoid the more extreme instances of the race. Id. at 302 n.*.
49. 28 U.S.C. § 2112(a)(5).
50. See infra notes 65-66.
51. E.g., 28 U.S.C. § 2344 (2006).
52. See, e.g., Wind River Mining Corp. v. United States, 946 F.2d 710, 715 (9th Cir. 1991) (holding that parties are not barred by the Administrative Protective Act's general statute of limitations from bringing challenges well after promulgation of a rule, as long as the challenge is to the statutory or constitutional authority of that rule as applied to the party). While some statutes purport to bar individuals from challenging agency decisions to the degree that they could have been challenged in initial petitions for review, see, e.g., 33 U.S.C. § 1369(b)(2) (2006); Clean Air Act, 42 U.S.C. § 7607(b)(2) (2006), there is some question as to whether such a bar is consistent with the Due Process Clause. See U.S. Const. amend. V; Adamo Wrecking Co. v. United States, 434 U.S. 275, 289-90 (1978) (Powell, J., concurring) (suggesting that such limitations on judicial review of as-applied agency decisions are constitutionally infirm); Christopher D. Man, Restoring Effective Judicial Review of Environmental Regulations in Civil and Criminal Enforcement Proceedings, 5 Envtl. Law. 665, 685-700 (1999) (reviewing history of such provisions, collecting cases questioning their constitutionality, and arguing for eliminating time limits on review but centralizing such review in single court of appeals with nationally binding effect). But see Yakus v. United States, 321 U.S. 414, 431-43 (1944) (suggesting that congressional limits on reviewability of statutes are acceptable).
53. If this doctrine applied to decisions in which the United States had been a defendant, a loss by the United States to one plaintiff would be available to a different plaintiff in a later case as a basis for claiming issue preclusion against the United States. The Supreme Court has concluded that this doctrine, though occasionally available against private defendants, see Parklane Hosiery Co. v. Shore, 439 U.S. 322, 331 (1979), is not available against the United States in any circumstance. United States v. Mendoza, 464 U.S. 154, 158-63 (1984).
54. See generally Samuel Estreicher & Richard L. Revesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679 (1989). In the most extreme version of the nonacquiescence doctrine, "intracircuit nonacquiescence," agencies refuse to apply a circuit's own rulings even within that geographic circuit, making conformance with circuit law entirely dependent on judicial review. Noting the Ninth Circuit's ultimate rejection of a Social Security Administration practice: In an effort to reduce the number of recipients of Social Security disability benefits in the face of circuit court rulings requiring proof of a change in medical condition before benefits could be terminated, SSA directed its personnel to follow agency policy and disregard contrary directions of the court of appeals. Id. at 681-82; see also William Wade Buzbee, Note, Administrative Agency Intracircuit Nonacquiescence, 85 Colum. L. Rev. 582 (1985) (surveying and generally condemning agency intracircuit nonacquiescence).
55. McGarity, supra note 48, at 329-31.
56. See infra Section I.B.
57. See infra notes 76-79 and accompanying text.
58. See Solum, supra note 7, § 134.02[1][c].
59. See 28 U.S.C. § 1407(a) (2006).
60. See, e.g., Transmission Access Policy Study Group v. Fed. Energy Regulatory Comm'n, 225 F.3d 667 (D.C. Cir. 2000). The caption to this decision indicates that it resolves fifty-one cases docketed in the D.C. Circuit, but nothing in the opinion suggests where those petitions for review originated. The only hint is in the court's passing mention that "[a]ll petitions for review . . . were consolidated and transferred to this circuit." Id. at 683. While that reference suggests that the case addresses at least some petitions consolidated through the § 2112 process, one would have to review at least the D.C. Circuit docket, and probably the MDL docket, to confirm that at least some of these cases were consolidated under MDL Docket No. RTC-36. The MDL docket (or, alternatively, the original files in the primary reviewing court) would have to be consulted to find out where the petitions for review originated.
61. This is the standard view of the stare decisis effect of federal court of appeals decisions, and certainly would apply to a decision resolving only one petition filed in a single court of appeals. The resulting decision would generally have no binding precedential effect in other circuits. See Nw. Forest Res. Council v. Dombeck, 107 F.3d 897, 900 (D.C. Cir. 1997).
62. See In re Korean Air Lines Disaster, 829 F.2d 1171, 1175-76 (D.C. Cir. 1987). This principle carries over into a court of appeals' management of transferred cases. When substantive state law is at issue in a transferred case, the federal courts are bound to follow the law of the transferor state (as long as the transferring court had jurisdiction). See Van Dusen v. Barrack, 376 U.S. 612 (1964). For federal law, however, the convention is that because there is only "one federal law," federal courts will apply the law of their own circuit, not the transferor circuit, when deciding questions of federal law in transferred cases. See Korean Air Lines, 829 F.2d at 1175-76; see also Richard L. Marcus, Conflicts Among Circuits and Transfers Within the Federal Judicial System, 93 Yale L.J. 677, 686-88 (1984) (suggesting that circuit conflicts-and the refusal of a circuit to be bound by decisions of other circuits-is inherent in the structure of the 1891 Evarts Act, creating the courts of appeals).
63. Law of the case principles apply when the same court is asked to consider, for a second time in a given case, a prior ruling. Most relevant when there has been a change in the deciding judge, law of the case generally treats an earlier decision with comity, and rejects a re-evaluation of the issue in question. The application of this doctrine when cases are transferred between circuits is somewhat unclear. For example, in Korean Air Lines, a case arising out of multiple complaints consolidated by the MDL in D.D.C. for pretrial proceedings, then-Judge Ruth Bader Ginsburg asked whether the D.C. Circuit's interpretation of the Warsaw Convention and Montreal Agreement would have law of the case effect in a different circuit once the cases before it were transferred back to the original district court for trial. She wrote that "[w]e believe it should . . . for if it did not, transfers under 28 U.S.C. § 1407 could be counterproductive, i.e., capable of generating rather than reducing the duplication and protraction Congress sought to check. On this issue in the case at hand, however, our circuit is not positioned to speak the last word." Korean Air Lines, 829 F.2d at 1173-76 (emphasis added) (citations omitted). On the difficulties posed by the application of the law of the case doctrine in transferred cases in the district courts, see Joan Steinman, Law of the Case: A Judicial Puzzle in Consolidated and Transferred Cases and in Multidistrict Litigation, 135 U. Pa. L. Rev. 595 (1987).
64. See S. Ct. Rule 10(a) (noting that the Supreme Court considers, in granting certiorari, whether "a United States court of appeals has entered a decision in conflict with the decision of another United States court of appeals on the same important matter"); see also Butler v. McKellar, 494 U.S. 407, 431 n.12 (1990) (noting " '[t]he process of percolation allow[ing] a period of exploratory consideration and experimentation by lower courts before the Supreme Court ends the process with a nationally binding rule' " (quoting Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court's Responsibilities: An Empirical Study, 59 N.Y.U. L. Rev. 681, 716 (1984) (alterations in original))); McCray v. New York, 461 U.S. 961, 963 (1983) (Stevens, J., respecting denial of petitions for writs of certiorari) ("In my judgment it is a sound exercise of discretion for the Court to allow the various States to serve as laboratories in which the issue receives further study before it is addressed by this Court."); E.I. du Pont de Nemours & Co. v. Train, 430 U.S. 112, 135 n.26 (1977) (stating that prior resolution of petitions for review in different circuits, and multiple resulting decisions, "exemplif[y] the wisdom of allowing difficult issues to mature through full consideration by the courts of appeals. By eliminating the many subsidiary, but still troubling, arguments raised by industry, these courts have vastly simplified our task, as well as having underscored the reasonableness of the agency view").
65. Nothing in the legislative history (either in 1958 or in 1988) explicitly or implicitly discusses the costs of consolidation, such as the practical difficulties associated with consolidation, the limitation on forum choice that results, the uncertainties in the current statute regarding precedential effect, the circumvention of the process of court of appeals' "percolation" before Supreme Court review, and the constitutional primacy of the Supreme Court in the federal appellate system. To the degree that costs are addressed at all, the concerns relate to difficulties and incentives associated with the consolidation process, and do not ask the fundamental question, Should consolidation happen at all? Early in his article, for instance, McGarity states with respect to the filing of multiple petitions that "there must be a mechanism for determining which court shall hear the case." McGarity, supra note 48, at 304 (emphasis added). There is, however, little explanation of why this must be the case.
66. The relevant legislative history for § 2112 arises out of two laws, Pub. L. No. 85-791 § 2, 72 Stat. 941 (1958) (enacting the initial consolidation rule, providing for consolidation in the court of appeals where a petition was "first instituted," 28 U.S.C. § 2112(a) (1960)); and the 1988 amendment, which changed the process to the current form, Pub. L. No. 100-236 § 1, 101 Stat. 1731 (1988). In 1958, the consolidation process was one of several provisions of a larger statute that allowed federal courts to streamline the process of judicial review through allowing the filing of abbreviated administrative records. See, e.g., H.R. Rep. No. 85-842, at 6 (1957) (accompanying H.R. 6788) (noting that the purpose of the legislation was to allow courts of appeals to "adopt rules authorizing the abbreviation of the transcript and other parts of the [administrative record]"). There is no discussion in the legislative reports suggesting consideration of the precedential effects of the proposed consolidation. In 1988, the statute amending § 2112 and adopting the MDL process was salvaged out of the Omnibus Regulatory Reform Bill introduced in 1980 and 1981. See Selection of Courts of Appeals to Decide Multiple Appeals: Hearing on H.R. 3084 Before the Subcomm. on Administrative Law and Governmental Relations, 98th Cong., 1st Sess. 2 (1983). While the larger bill apparently could not muster adequate support, there was (eventually) support for a bill that would end the embarrassing spectacle of the "race to the Courthouse." See S. Rep. No. 100-263, at 3-4 (1987) (to accompany S. 1134) (noting legislative history of Senate legislation identical to ultimately-enacted House bill). Once again, however, the focus of the legislation was not on the precedential effect of consolidated decisions, but on eliminating problems inherent in the existing process. See id. at 2-3.
67. The only rationales consistently articulated in the enactment of § 2112 and its amendments, as well as in the few cases that actually discuss consolidation under § 2112, are efficiency rationales-namely, the point of consolidation is to save the time and energy associated with handling multiple petitions for review. Indeed, the statute was initially enacted, at least in substantial part, to ease the burden of agencies in their filing of the administrative record. See, e.g., H.R. Rep. No. 85-842, at 6 (1957) (accompanying H.R. 6788) (noting that primary purpose of legislation was to limit the work needed to develop the administrative record in cases of multiple petitions for review); S. Rep. No. 85-2129 (1958), reprinted in 1958 U.S.C.C.A.N. 3996, 3997 ("The object of the instant legislation is to eliminate the filing of the entire record except in instance where it is required."); id. at 3999.
68. Indeed, this appears to be the result in most of the cases in which subsequent courts of appeals examine the precedential value of a prior decision in a case involving consolidated petitions for review. See, e.g., Transmission Agency of N. Cal. v. Fed. Energy Regulatory Comm'n, 495 F.3d 663 (D.C. Cir. 2007) (treating Ninth Circuit decision in consolidated case, Bonneville Power Admin. v. Fed. Energy Regulatory Comm'n, 422 F.3d 908 (9th Cir. 2005), as persuasive, but not binding precedent and failing to mention that the Ninth Circuit case was consolidated under § 2112); WWC Holding Co. v. Sopkin, 488 F.3d 1262 (10th Cir. 2007) (mentioning and agreeing with decision in consolidated case of Tex. Office of Pub. Util. Counsel v. FCC, 183 F.3d 393 (5th Cir. 1999), but failing to mention that the Fifth Circuit case involved consolidated petitions under § 2112); Tex. Office of Pub. Util. Counsel v. FCC, 265 F.3d 313, 324 (5th Cir. 2001) (agreeing with decision of Eighth Circuit in consolidated petition, Sw. Bell Tel. Co. v. FCC, 153 F.3d 523 (8th Cir. 1998)). But cf. Ind. Bell Tel. Co. v. McCarty, 362 F.3d 378, 389 & n.13 (7th Cir. 2004) (noting that parties had argued for the binding effect of a Eighth Circuit decision in a consolidated petition for review, but that a Supreme Court decision had intervened, mooting the argument).
69. See Lincoln Caplan, The Tenth Justice: The Solicitor General and the Rule of Law (1987) (explaining the history of the solicitor general's position and role).
70. Brief for Federal Petitioners, Nat'l Cable & Telecomm. Ass'n v. Brand X Internet Serv., 545 U.S. 967 (2005) (Nos. 04-277, 04-281), 2005 WL 122088, rev'g Brand X Internet Serv. V. FCC, 345 F.3d 1120 (9th Cir. 2003).
71. Id. Whether this position would hold true when directly presented under different circumstances is unclear. As noted above, federal agencies often rely on the principle of intercircuit nonacquiescence in order to comply with a court order striking down a particular policy or regulation in one circuit, while continuing to pursue that policy or regulation in other, friendlier, circuits. See supra note 53 and accompanying text. In one recent example, the Department of Homeland Security ("DHS") has complied in the Ninth Circuit with that court's ruling in Freeman v. Gonzales, 444 F.3d 1031 (9th Cir. 2006) (striking down DHS rulings that rejected application of alien spouse for permanent residency status under visa waiver program when their U.S. citizen spouse dies before processing of the application was complete), but it has continued to apply its prior policy in other circuits. See This American Life: The Audacity of Government Part Two (Chicago Public Radio Broadcast Mar. 28, 2008), available at http://www.thisamericanlife.org/Radio_Episode. aspx? sched=1236. Because it is not uncommon for federal agencies to rely on this ability to ignore circuit decisions in other circuits, it seems difficult to believe that the solicitor general would, if squarely presented with this issue, willingly abandon the flexibility that the general rule-no intercircuit binding effect-gives to the federal agencies.
72. Brand X Internet Serv. v. FCC, 345 F.3d 1120, 1127 (9th Cir. 2003).
73. 216 F.3d 871 (9th Cir. 2000).
74. Petition for Writ of Certiorari at 23 n.8, FCC v. Brand X Internet Serv., 545 U.S. 967 (No. 04-281), 2004 WL 1943678.
75. See supra note 53.
76. See infra text accompanying notes 77-87.
77. E.g., 42 U.S.C. § 7607(b)(1) (2006) (limiting review of certain Clean Air Act decisions to D.C. Circuit); 47 U.S.C. § 402(j) (2006) (limiting certain decisions by the FCC to the D.C. Circuit, whose judgment "shall be final, subject, however, to review by the Supreme Court of the United States").
78. 2 U.S.C. § 437h (2006) (setting forth rules governing single-circuit [three-judge district court panel] review of constitutional challenges to the Bipartisan Campaign Reform Act of 2002 (BCRA), Pub. L. No. 107-155, 116 Stat. 81 (2002)).
79. E.g., 2 U.S.C. § 922 (2006) (review of balanced budget reform act by three-judge panel in D.C. District Court); Bowsher v. Synar, 478 U.S. 714 (1986) (deciding appeal of same).
80. It is, of course, a staple of appellate practice before the Supreme Court that denials of certiorari do not count as rulings on the merits of a case. See, e.g., Eugene Gressman et al., Supreme Court Practice 334-35 (9th ed. 2007). The rationale for that conclusion, however, turns on the fact that, for several reasons, a given petition might not be the best time for the Court to decide a given question, even if it disagrees with the outcome. In the case of single-circuit review of particular questions, however, many of the non-merits-based arguments for denying certiorari fall away. Even if there are procedural or factual flaws, there is little guarantee of future cases coming before the Court if the ability to conduct appellate review is limited by statute. And, depending on the strength of the jurisdictional limit in the statute, there are unlikely to be later decisions by other circuits on the same point. If the Court is to correct a legal error, then, the best and arguably only time to do it would be immediately after the D.C. Circuit decision. If the Court nevertheless denies certiorari, it may not amount to a decision on the merits-but the implications are arguably clearer than might be true for a run-of-the-mill denial of certiorari. While one might, of course, argue that certiorari had been denied because the case was unimportant, the unusual and congressionally dictated process of accelerated review would cut against such a conclusion.
81. Indeed, giving binding precedential effect to a single-circuit decision would effectively create a national court of appeals. While such entities have been proposed many times, those proposals have thus far been rejected (or at least not implemented). For a discussion of the many proposals to create a national court of appeals, see Thomas E. Baker, Imagining the Alternative Futures of the U.S. Courts of Appeals, 28 Ga. L. Rev. 913, 927-46 (1994). Baker notes that the "hostile reaction" to the Freund Commission's 1972 proposal to create a national court of appeals "set some limits to permissible debate." While Baker hoped that such hostility would not greet the 1990 proposals of Federal Courts Study Committee, see id., few of the more substantial structural recommendations offered by that group ever came to pass.
82. See supra text accompanying notes 55-58.
83. 549 U.S. 561 (2007).
84. See New York v. U.S. EPA, 413 F.3d 3 (D.C. Cir. 2005).
85. Petition for Writ of Certiorari, Envtl. Def. v. Duke Energy Corp., 547 U.S. 1127 (2006) (No. 05-848), 2005 WL 3615991, at*1.
86. Transcript of Oral Argument at 8, Duke Energy, 549 U.S. 561 (No. 05-848), available at http://www.oyez.org/cases/2000-2009/2006/2006_05_848 (last visited Feb. 20, 2010).
87. See generally Duke Energy, 549 U.S. at 561.
88. 28 U.S.C. § 1295 (2006) (giving Federal Circuit jurisdiction over appeals from district court decisions in which the lower court's jurisdiction was "based, in whole or in part, on" 28 U.S.C. § 1338 (2006), which gives district courts jurisdiction over "any civil action arising under any Act of Congress relating to patents . . . copyrights and trademarks").
89. Midwest Indus., Inc. v. Karavan Trailers, Inc., 175 F.3d 1356, 1357-58 (Fed. Cir. 1999) (en banc).
90. Id. at 1358-59.
91. Id. While the Midwest Industries case was only before a panel of the Federal Circuit, the panel circulated this portion of the opinion to the en banc court, which concurred in the holding. See id. at 1359 n.*. Contrast the ruling in Midwest Industries with the Federal Circuit's "Rule of Deference," under which it applies the rules of procedure that would have been applicable in the relevant geographic circuit out of which a patent case arises. See Peter J. Karol, Who's At The Helm? The Federal Circuit's Rule of Deference and the Systemic Absence of Controlling Precedent in Matters of Patent Litigation Procedure, 37 AIPLA Q.J. 1, 4 (2009).
92. Midwest Indus., 175 F.3d at 1361.
93. One example might be (as in Midwest Industries) the question of whether patent law preempts a state law claim.
94. For instance, the plaintiff might file a state law cause of action for trademark infringement, but no accompanying claim for patent infringement.
95. Midwest Indus., 175 F.3d at 1361 (this portion of the opinion is still en banc).
96. 28 U.S.C. § 158(c) (2006). To add to the complexity, a court of appeals may decide under certain circumstances to not establish a BAP, or it may jointly create a BAP with another circuit.
97. Id. § 158(b)(1).
98. Id. § 158(d)(1) (permitting appeals from final orders); id. § 158(d)(2) (permitting various interlocutory appeals in bankruptcy matters from district courts or BAP panels).
99. See William L. Norton, Jr. & William L. Norton III, Norton Bankruptcy Law and Practice § 170:17 (William L. Norton, Jr. et al. eds., 3d ed. 2009) (noting multiple approaches to this question, all supported in various forms by different combinations of appellate, BAP, district, and bankruptcy court decisions).
100. The decision in Coyne v. Westinghouse Credit Corp. (In re Globe Illumination Co.), 149 B.R. 614, 620 (Bankr. C.D. Cal. 1993), seems to hint that this should be the case.
101. See David A. Levin, Comment, Precedent and the Assertion of Bankruptcy Court Autonomy: Efficient or Arrogant?, 12 Bankr. Dev. J. 185 (1995); Norton & Norton, supra note 99, § 170:17.
102. Norton & Norton, supra note 99, § 170:17.
103. There are statements to this effect here and there in the literature. In his comparative examination of American precedent, for instance, Sellers suggested, "[t]he essence of the American system of precedent as experienced in practice resides in the great authority and hierarchical arrangement of the courts." Sellers, supra note 1, at 68. Harrison states the relationship negatively, noting, for instance, that it is "unlikely that there was widespread agreement as to norms of vertical precedent when the Constitution was adopted, because judicial structures were very much in flux." Harrison, supra note 40, at 521.
104. Black's Law Dictionary 1296 (9th ed. 2009) (defining binding precedent as "precedent that a court must follow. For example, a lower court is bound by an applicable holding of a higher court in the same jurisdiction").
105. 223 F.3d 898 (8th Cir. 2000), vacated en banc, 235 F.3d 1054 (8th Cir. 2000). Although the panel decision was swiftly vacated, its effects reverberated throughout the federal appellate system for some time, and may have served to motivate the recent decade's substantial academic work involving the role of precedent in the federal system. See, e.g., Harrison, supra note 40; Norman R. Williams, The Failings of Originalism: The Federal Courts and the Power of Precedent, 37 U.C. Davis L. Rev. 761 (2004) (critically reviewing the constitutional and historical analysis of horizontal precedent in those cases).
106. Hart v. Massanari, 266 F.3d 1155 (9th Cir. 2001).
107. Id. at 1164 n.10 (noting the importance of reliable reporting to the development of our current model of stare decisis). In light of the importance of access to a decision on the effect of that decision, one of the most compelling arguments against the intercircuit binding effect in consolidated petitions for review is the parties' inability to determine whether a circuit court that decides a petition for review was the only circuit to receive that petition, or whether it was, instead, the circuit at the receiving end of a transfer of multiple petitions for review under 28 U.S.C. § 2112 (2006). If parties cannot determine whether their circuit transferred a petition to the primary deciding circuit, it is difficult to insist that they treat the primary deciding circuit's decision as binding.
108. Hart, 266 F.3d at 1164 n.10 (noting that a "settled judicial hierarchy" is important to the development of precedent).
109. See id. at 1173 ("The various rules pertaining to the development and application of binding authority do not reflect the developments of the English common law. They reflect, rather, the organization and structure of the federal courts and certain policy judgments about the effective administration of justice.").
110. Lawrence Solum correctly suggests that "[w]ithout [vertical] stare decisis the meaning of [statutory and constitutional] provisions would be up for grabs in every case involving them. And when the law is up for grabs, it cannot realize the values we summarize by the phrase the rule of law." Solum, supra note 14. While an accurate reflection of the justifications that support the idea of precedent generally, we know that our system already has rejected this proposition in the intercircuit context; there, the value of precedent and consistency is outweighed by the systemic value of the different circuit courts acting as laboratories. In itself, this reliance on the "rule of law" cannot justify the Highly Binding Approach.
111. There are several variations of this second approach that might make the application of binding precedent more acceptable to the circuit to which it applies. A subsequent circuit might conclude, for instance, that the prior decision is subject to overruling by an en banc panel of the subsequent circuit court.
112. See, e.g., Coyne v. Westinghouse Credit Corp. (In re Globe Illumination Co.), 149 B.R. 614, 620 (Bankr. C.D. Cal. 1993) (parsing the language of Title 15 in order to discern whether or not BAPs are part of the court of appeals); In re Junes, 76 B.R. 795, 797 (Bankr. D. Or. 1987) (concluding that BAPs stand in the same hierarchical position vis-a-vis both bankruptcy courts and courts of appeal as district courts, and therefore have no more binding effect than a district court decision would).
113. If implicit congressional intent were sufficient to permit cross-circuit binding precedent, this approach would be essentially identical to the Structure-Relevant Approach, in which courts evaluate the context of new structures and processes in order to decide how best to assign them to existing roles in the federal system. The difficulties of that approach are obvious, and so the benefits of the Clear-Statement Approach are achieved only by requiring explicit statements regarding the binding effect of decisions made pursuant to a nonstandard appellate process.
114. Because no existing alternative processes include clear statements that they generate binding precedent outside the deciding circuit, the application of this approach would mean that no currently existing system would result in binding precedent applying across circuits.
115. Even if the courts do identify their decision as being based on a consolidated petition for review, they do not discuss which circuits their decisions come from. See supra note 60. Of course, if the system were to give cross-circuit binding effect to decisions arising from nonstandard processes, we might expect this problem to cure itself over time. Courts might, for instance, learn to "tag" their decisions as "potentially binding in other circuits," and perhaps online services such as Lexis and Westlaw would come to include those tags in a manner that would make them part of the database for the circuits in which they are binding (if, of course, such a determination could possibly be made). Even under the Clear-Statement Approach, it would be to the benefit of all involved if courts developed explicit language that would permit parties to easily identify which decisions (out of the usual collection of entirely routine decisions) were generated as a result of nonstandard processes that Congress had indicated should be binding in other circuits.
116. It might also give rise to other problems. For instance, if the Second Circuit's decision in a consolidated petition for review is deemed binding in the Ninth Circuit, but if the Second Circuit (sitting en banc) subsequently overrules its earlier ruling, does that subsequent en banc decision then bind the Ninth Circuit? Cf. Sassy Doll Creations, Inc. v. Watkins Motor Lines, Inc., 331 F.3d 834, 840 n.1 (11th Cir. 2003) (suggesting that the subsequent overruling of another circuit's decision is not binding on the Eleventh Circuit, even if prior decisions of the Eleventh Circuit had relied on a now-overruled decision as persuasive authority).
117. See MDL Panel Docket Report, supra note 48. If one counts Federal Circuit cases, of course, there are more significant numbers; even then, however, the Federal Circuit considered only 476 cases from the district courts in 2005. See Leonidas Ralph Mecham, Admin. Office of the U.S. Courts, Judicial Business of the United States Courts: 2005 Annual Report of the Director 143, tbl. B-8 (2006), available at http://www.uscourts.gov/judbus2005/appendices/b8.pdf (last visited Nov. 26, 2009).
118. See Admin. Office of the U.S. Courts, Federal Court Management Statistics 2005, Courts of Appeals http://www.uscourts.gov/cgi-bin/cmsa2005.pl (last visited Mar. 25, 2008) (reporting 68,473 appeals filed in 2005).
119. This adherence to the standard model is not, in itself, correct or incorrect. As noted in Section I.B., it reflects, to a substantial degree, the historical accident that led to the development for processing cases through our federal system. The structure we have relates intimately to the views of precedent that we hold. If the system had been different, there might have been little concern associated with many of these nonstandard processes.
120. See Schauer, supra note 1, at 588-89.
121. See id.
122. In all likelihood, a court will vary the degree to which it relies on "persuasive" authority from another circuit depending on a variety of other factors. At least one factor may be present in all these cases: many circuits have stated that they will avoid creating circuit splits if at all possible. See, e.g., In re Miller, 276 F.3d 424, 428-29 (8th Cir. 2002) (explaining the court's preference for following other circuits whenever "reasoned analysis will allow"); Envtl. Prot. Info. Ctr. v. Pac. Lumber Co., 257 F.3d 1071, 1077 (9th Cir. 2001) (following other circuits "unless there are valid and persuasive reasons to hold otherwise").
123. See 28 U.S.C. § 1295 (2006) (giving Federal Circuit jurisdiction over appeals in cases when district courts have jurisdiction under 28 U.S.C. § 1338); 28 U.S.C. § 1338 (2006) (giving Federal Circuit jurisdiction over cases relating to "any Act of Congress relating to patents . . . copyrights and trademarks").
124. This is, of course, a simplified version of a classic justification for precedential rules from a law and economics perspective. See William M. Landes & Richard A. Posner, Legal Precedent: A Theoretical and Empirical Analysis, 19 J.L. & Econ. 249 (1976).
125. U.S. Const. art. III, § 1.
126. See, e.g., Harrison, supra note 40, at 539-42 (suggesting ways in which Congress might rely on the Necessary and Proper Clause to control the structure of lower federal courts and, thereby, rules of precedent).
127. Some have suggested, for instance, that Congress might designate circuit judges to sit on the Supreme Court when one of the justices must recuse him or herself from a case. See Howard J. Bashman, Avoiding Recusal-Based Tie Votes at the U.S. Supreme Court, Law.com, Mar. 4, 2008, http://www.law.com/jsp/article.jsp?id=1204544938947. The history of the federal courts discussed in Section I.B. suggests that expanding the Supreme Court to include a wider variety of judges might loosen the hierarchical structure of our existing system, and thereby alter our views of both horizontal and vertical precedent. Notably, one academic suggested that a Supreme Court decision with a circuit judge sitting by designation might be entitled to lesser weight than a case in which only justices sat. See Posting of Mike Dimino, Concurring Opinions, Sitting by Designation on the Supreme Court, http://www.concurringopinions.com/archives2006/01/sitting_by_desi.html. (Jan. 13, 2006, 10:44). This view (something that has likely never been suggested as a reason to give less weight to a court of appeals decision with a district court judge sitting "by designation") may well relate to the strong identity between the Supreme Court and the justices who sit on it. This, again, appears to be due more to historical happenstance, rather than to positive or other law. The only limit on a particular judge's role within the federal court system might be for the Chief Justice, who (though not mentioned in Article III) is responsible for presiding over presidential impeachment hearings in the Senate. U.S. Const. art. I, § 3. Even that may not be enough to mandate that a particular person serve as Chief Justice "for life," given Congress's management control over the internal operations of the Court.