“Beginning with a simple question—what can one say about the Supreme Court’s on-again/off-again relationship with lower court precedent—Bruhl finds a surprisingly rich collection of answers that illuminate much about the institutional federal judiciary.” Northwestern Law Professor James Pfander, reviewing Aaron-Andrew Bruhl’s article about when and why the U.S. Supreme Court might invoke lower court precedent when deciding the cases it chooses to review, based on a database of decisions from a recent three-year period. Pfander notes, “He finds some evidence that the Court more likely follows the direction indicated in a one-sided circuit split, but the evidence is far from conclusive. Indeed, he finds a number of situations in which the Court came out on the other side of a one-sided split.” According to Pfander, “We learn much about the institutional judicial from such a story. Accuracy in strictly legal terms may be a driving force in legal decisions, but it is not the only force.”
Courtslaw.Jotwell.com, November 14, 2014.