Quote:
Originally Posted by Nick Justice
Unpublished cases generally cannot be cited as binding precedent to support an argument. (Why they choose to avoid publication is a mystery.) As you say, if you want the court to consider an unpublished case, you MUST declare it as unpublished. As such, the case is persuasive, non-binding authority. "Justice O'Scannlain, You might want to consider this case."
The court must follow binding case law and authority, but can dismiss persuasive authority without comment or consideration.
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That about makes sense, and the authority for that might be here in
Boyd v. Benton County, 374 F.3d 773, 781 (9th Cir. 2004), no?
"In the Ninth Circuit, we begin our inquiry by looking to binding precedent. See
Capoeman v. Reed, 754 F.2d 1512, 1514 (9th Cir. 1985). If the right is clearly established by decisional authority of the Supreme Court or this Circuit, our inquiry should come to an end. On the other hand, when ‘‘there are relatively few cases on point, and none of them are binding,’’ we may inquire whether the Ninth Circuit or Supreme Court, at the time the out-of-circuit opinions were rendered, would have reached the same results. See
id. at 1515."
But
Boyd doesn't tell us that cases which look to unpublished authority must be rendered unpublished, correct?
The Supreme Court talks about their own precedent "ha[ving] direct application in a case, yet appear[ing] to rest on reasons rejected in some other line of decisions", and how "the Court of Appeals should follow the case which directly controls," (
Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989)), but I think that this was an admonition to the lower courts from the Supreme Court that thou shalt not tinker with long standing Supreme Court precedent, even if it has no
stare decisis effect before any court, which is probably why the
Boyd Court didn't mention
Rodriguez for that purpose, no? Anyone care to chime in on that one? I've been kinda interested in that part of case law lately.
Erik.