June 2010 Vol. 108 No. 8 THE REVIEW
ARTICLES

Structure and Precedent

Jeffrey C. Dobbins

 

The standard model of vertical precedent is part of the deep structure of our legal system. Under this model, we rarely struggle with whether a given decision of a court within a particular hierarchy is potentially binding at all. When Congress or the courts alter the standard structure and process of federal appellate review, however, that standard model of precedent breaks down. This Article examines several of these unusual appellate structures and highlights the difficulties associated with evaluating the precedential effect of decisions issued within them. For instance, when Congress consolidates challenges to agency decision making in a single federal circuit, is the decision that ultimately issues binding on just the deciding court, or is it binding nationwide? The lack of well-accepted answers to this and similar questions undermines the work of practitioners, courts, and Congress.

This Article uses these nonstandard processes and institutions to emphasize a rarely stated observation that will ensure a more careful and rational discussion of precedential rules in the future: the structure of the court system within which decisions are made-the structure of the appellate universe-is critical to defining the rules of binding precedent. After discussing this relationship between structure and precedent, this Article identifies, and argues in favor of, a Clear-Statement Approach to determining the precedential effect of decisions in non-standard appellate structures. This approach encourages Congress to pay attention to the precedential effect of its structural decisions, and highlights the degree to which Congress controls rules of precedent through its control over the structure of the federal judiciary.

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The Future of Disparate Impact

Richard Primus
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Article I, Article III, and the Limits of Enumeration

Gil Seinfeld
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NOTES

The (Mis)Categorization of Sex in Anglo-American Cases of Transsexual Marriage

John Parsi

 

The United States' promise to establish equality for all has been challenged by post-operative transsexuals seeking recognition in their acquired sex. The birth certificate is the legal gateway to changing other legal documents; but the process for changing the birth certificate varies widely from state to state. This lack of national uniformity makes post-operative transsexuals' recognition of their acquired sex complicated at best and impossible at worst.

This Note details the legal progression from non-recognition to recognition of post-operative transsexuals' acquired sex in the United Kingdom and through the European Court of Human Rights. The Note goes on to explore the basis on which rights should be secured domestically for post-operative transsexuals, namely the Due Process Clause of the Fourteenth Amendment. Through an evaluation of the Supreme Court's use of reason-borrowing, this Note provides a means  to establish legal recognition for the acquired sex of post-operative transsexuals in the United States.

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