Channing J. Curtis (University of Mississippi, School of Law) has posted State Court Structure and Precedent (45 N.C. Cent. L. Rev. __ (Forthcoming 2023)) on SSRN. Here is the abstract:
Vertical precedent is often thought of as a relatively simple doctrine—lower courts are bound by higher courts of the same jurisdiction. And while that may be so in the federal model, it is not, nor should it necessarily, be the case in the states. If stare decisis is truly context dependent and the structure of the court system within which the doctrine is applied actually has an impact on precedential value, then a failure to take into account each individual state judicial structure and appellate procedure in evaluating the precedential value of state court decisions leaves looming questions, like whether a lower court might be allowed to anticipatorily overrule a prior decision of that state’s supreme court.
By now, the United States Supreme Court has returned many issues of great importance to the states. Thus, a serious need is developing in state court jurisprudence, particularly regarding the rules of vertical stare decisis. For an example of the relevancy of this issue, one need only look to the Mississippi state court case which followed Dobbs v. Jackson Women’s Health Organization. There, the chancellor cited the state’s court structure as she disregarded, or anticipatorily overruled, a prior Mississippi Supreme Court decision which found that the Mississippi Constitution protected a right to abortion. As seen in the Mississippi Dobbs case, the implications of the relationship between vertical stare decisis and state court structure are undoubtedly important and affect the decision-making process surrounding rights that are hotly debated.
Therefore, this Article, for the first time, proposes that the relationship between vertical precedent and the appellate structure of state courts around the country should be considered by courts when determining the strength of vertical precedent. A fifty-state survey of the issue shows that forty-eight states’ courts have promulgated rules commanding lower courts to follow higher court precedent, while a handful have codified or constitutionalized the issue. One state, Kansas, allows their intermediate appellate court to anticipatorily overrule the Kansas Supreme Court, while one other state, South Dakota, has seemingly never put forward a rule on the subject.
Despite the Article’s survey of vertical stare decisis rules, some state courts have taken court structure into account when deciding the strength of a vertical precedent. Two examples highlighted in this Article, including Mississippi and California, cite court structure for both a weaker and stronger application of vertical stare decisis. The California Supreme Court seems to root their Rodriguez de Quijas-like rule in the fact that they exercise discretionary review over lower courts, but Mississippi courts have pointed to the mandatory review of the Mississippi Supreme Court as a basis for disregarding prior decisions of higher courts that rest on shaky foundations. Thus, court structure is a consideration that can both strengthen or weaken the application of stare decisis, and it should be taken into account by every state judiciary in light of their unique structure.
Highly recommended. Important! This is amazing student work.
