You Want Me to Do What? The Dilemma of Trying to Interpret and Follow Appellate Precedent
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Authors
Michael, Terrence L.
Issue Date
2018
Volume
52
Issue
1
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
INTRODUCTION|Almost 20 years ago, as a relatively new bankruptcy judge, I posted a series of brief writing tips to the Court’s web site. When it came to case citation, this is what I wrote:
Know the facts of the cases you cite. At the writing of this
little ditty, there are almost 300 volumes of West’s Bankruptcy
Reporter. Suffice it to say that some judge, somewhere,
sometime has written and published an opinion which
contains the magic words which support your position. It is
extremely tempting to insert that quotation (I call them
“sound bites”) into your brief and say, “see, judge, other
courts agree with me so I must be right.” This is a dangerous
practice. Courts decide real disputes. Real disputes are fact
driven. For me, the facts of a case are at least as important
as the legal analysis. Be wary of the case which is factually
dissimilar to yours, but has a great sound bite. Be sure (either
in your brief or at oral argument) to explain why the factually
dissimilar case is applicable to your situation. Also, be
cognizant of the difference between the holding of a case and
the dicta contained therein. Most judges (this one included)
find little value in dicta unless we already agree with it.This principle works well in the world of brief writing. After all, a
brief is written to a very limited audience (a judge and her clerk) for a very specific purpose (to persuade the judge on one set of facts in one particular case). Judicial decisions are a different animal. Judicial decisions, especially published judicial decisions, are written for a larger audience and a slightly different purpose. While the published trial court decision is written to resolve the dispute between the parties presently before the court, it is also written to shape the behavior of those who might come before the court in the future and to limit future litigation.|Published decisions of appellate courts, however, serve a broader function. In the case of decisions of the United States Supreme Court, they are binding upon every court in the land. In a similar fashion, published decisions of the Courts of Appeals for the various circuits bind the lower federal courts. Moreover, appellate court decisions are at least one step removed from the front lines of fact finding. When it comes to bankruptcy cases, an appellate court faces a unique hurdle. Many bankruptcy cases involve an ongoing business or a debtor trying to reorganize her personal affairs. The dispute before the bankruptcy court in an adversary proceeding or contested matter is part of an ongoing process, rather than a single confined dispute. While the bankruptcy court is fully aware of this fact, and cognizant that the issue decided today may affect the decisions made by debtors and creditors tomorrow, that nuance is often lost on the appellate courts.|While there can be no doubt under our current system of jurisprudence
lower courts are bound by published decisions of appellate courts, the question remains as to what a trial court is to do with
broad pronouncements found in an appellate decision based upon limited or dissimilar facts. The theses advanced here are that lower courts should be permitted to look beyond the broad pronouncements of an appellate court and consider the factual nature of the dispute giving rise to the appellate decision. Also, appellate courts should focus their rulings on the dispute before them rather than make broad statements of law that may be unclear, lead to unintended results in
future cases, and, in some cases, be uninterpretable. To demonstrate the issue and the problem, it is necessary to examine the various means by which circuit courts of appeals limit the precedential value of opinions, and one Supreme Court case that has cut a wide precedential swath.
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Citation
Publisher
Creighton University School of Law