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Reading is difficult. As a writer, I help the reader every way I can think of. As a reader, I work hard not to miss the big things in the middle of the road.

Sunday, July 8, 2012

Some Oddities of Stare Decisis or Issue Preclusion

Of necessity, stare decisis or issue preclusion, is weaker in a final appellate court than in an intermediate appellate court. A final appellate court is one that which there is no higher. In the federal system, it's the Supreme Court of the United States. In Texas, as to Texas civil law, it's the Supreme Court of Texas; as to Texas criminal law, it's the Texas Court of Criminal Appeals. Intermediate appellate courts are the others.
It is not unreasonable to think that a legal rule adopted dozens or hundreds or years earlier, might become outmoded as technological or economic circumstances changes. While higher courts might change outmoded rules for the lower courts. The only court that can overrule the bad rule of the highest court of a system is that highest court.
A common law court can overrule its own rules, but most of them would probably leave changing important old rules to the higher courts.
An appellate court is generally also more open to changing rules on constitutional matters than on matters interpreting legislation, which may be counter intuitive. This is because as to constitutional interpretation only the appeals court can change its interpretation of the constitution. As to legislative interpretation, the legislature can change a statute. By comparison, changing the constitution is a lot more work.

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