Technical basis for the binding nature of precedent or stare decisis I understand that US district courts are generally required to follow precedent set by the appeals court directly superior to the district court, while opinions of other appeals courts may be influential, but are not binding. Similarly, appeals courts (indeed all inferior courts) are of course bound to follow precedent set in rulings of the supreme court. Is the mandate to respect the precedent set by superior courts explicit in statute somewhere? I looked in the US code, but could not find it. Is it specified in the judiciary's rules of procedure?
No The importance of following precedent, and the principle of stare decisis were inherited by the early US legal system from the British Common Law system, and have been taken as part of the natural order of the legal system by US courts ever since. This extends even to a court overruling itself. US Courts are notoriously reluctant to overrule their past decisions, even when current court members agree, However they will do so from time to time. The US Supreme Court in particular will flatly overturn previous decisions, especially on Constitutional issues, when it thinks there is no other way to achieve a proper outcome, although it often prefers to distinguish the prior decision without actually overruling it. I think the fastest and most extreme case where the US Supreme Court overruled itself was that of West Virginia State Board of Education v. Barnette, 319 U.S. 624 (1943), the second flag-salute case. (This was also a particularly significant case.) This reversed Minersville School District v. Gobitis, 310 U.S. 586 (1940) a case on the exact same issue, only three years previously, and a vote of 8-1 on the first case became a vote of 6-3 the other way, with only one new Justice on the Court. Only Justice Frankfurter, the author of the fist decision, issued a dissenting opinion in the Barnette case, and no other Justice formally joined that opinion.
Writs of Mandamus Are A Recognized Procedural Tool In the Federal Courts Is there precedent for this type of use of the writ of mandamus? Yes. It needs to be understood against the background rule of civil procedure that a party can only appeal a final judgment of a trial court, and cannot appeal an order entered by a trial court prior to entry of a final judgment. For example, the denial of a party's request that a motion to dismiss a case, or a motion for summary judgment be entered, which forces the claim at issue in the motion to be resolved following an evidentiary hearing or trial, rather than summarily earlier on in the case, is not an appealable order (subject like almost everything in the law to a few narrow exceptions, e.g., for a denial of a law enforcement officer's claim of qualified immunity in a civil rights case, and for preliminary injunctions). At the federal level, writs of mandamus have not been abolished as a means of securing an interlocutory appeal of a lower court ruling, but some alternative means of obtaining interlocutory appeals have been authorized by statute, and a writ of mandamus is only available where alternative remedies are not available. The route of last resort is a writ of mandamus. But, there are also other exceptions, a couple of more common of which including the following ones. Sometimes it isn't clear if a judgment is final or not, or a judgment is final against one party or on one issue, and not against other parties in the case or on other issues, and there is no good reason to delay an appeal against the one party against whom a final judgment has been entered. In those cases, a trial court, may, but is not required to certify the partial judgment as final, allowing an immediate appeal. Fed. R. Civ. P. 54(b). There is also another kind of discretionary appeal by statute in federal court and this is what the government is claiming that the lower courts abused their discretion in not providing. This statute is 28 U.S.C. § 1291(b), which provides that: When a district judge, in making in a civil action an order not otherwise appealable under this section, shall be of the opinion that such order involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, he shall so state in writing in such order. The Court of Appeals which would have jurisdiction of an appeal of such action may thereupon, in its discretion, permit an appeal to be taken from such order, if application is made to it within ten days after the entry of the order: Provided, however, That application for an appeal hereunder shall not stay proceedings in the district court unless the district judge or the Court of Appeals or a judge thereof shall so order. Writs of mandamus in the federal courts are another means by which interlocutory relief can be granted (in addition to compelling public officials to take non-discretionary actions) which are authorized by the All Writs Act which is &quot;28 U.S.C. § 1651, which authorizes the United States federal courts to &quot;issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law.&quot; Many states have replaced the writ of mandamus with statutory rights to interlocutory appeals or with specific civil rules that replace the previous common law writs. For example, in Colorado, writs of mandamus directed at public officials other than judges and at judges in trial courts of limited jurisdiction have been superseded by Colorado Rule of Civil Procedure 106 and writs of mandamus directed at general jurisdiction trial courts have be superseded by Colorado Appellate Rule 21. Writs of mandamus in the U.S. Supreme Court are also governed by Federal Rule of Civil Procedure 21, but the federal rule retains the historic &quot;writ of mandamus&quot; terminology (in part to make it easier to search old precedents that used the old common law writ terminology and in part to keep the rule clearly within the authority granted by the All Writs Act). The use in question has been around pretty much as long as the federal court system, although it isn't terribly common, and writs of mandamus, when filed, are frequently denied. Historically, a writ of mandamus was treated as a lawsuit in the higher court by the aggrieved party seeking to appeal the lower court judge's decision prior to a final order against the judge in the judge's official capacity. Most jurisdictions no longer structure interlocutory appeals in this way because it is an irritation for a judge who is applying for a loan to have lots of lawsuits against him or her in the public record that aren't really lawsuits against the judge personally, even though they superficially look like it when one does a simple party search of court records. Writs Of Mandamus Are Used When Other Options Provide Inadequate Relief Under what circumstances is this normally used? At common law, before there was statutory authorization for interlocutory appeals (i.e. appeals before a final judgment on the merits is entered in a case, usually following a trial or ruling on a summary judgment motion that resolved all pending claims), a writ of mandamus was the only means by which appellate relief could be obtained before trial. Typically, a writ of mandamus was sought in circumstances where a failure to address the order appealed would make it an uncorrectable fait accompli once a trial was conducted (e.g. an appeal of an order requiring someone to disclose allegedly attorney-client privileged information), the negative consequences of the order are material, and there is no statutory alternative means by which to obtain interlocutory relief. More precisely: interlocutory appeals are permissible in a small category of cases where the decision being sought for appellate review: – (1) Conclusively determined the disputed question; – (2) Resolved an important questions separate from the merits of the action; and – (3) The decision is effectively unreviewable on appeal from the final judgment in the underlying action. See, e.g., Hallock v. Bonner, 387 F.3d 147 (2d Cir. 2004). The decision to grant this relief is discretionary and the court receiving a writ of mandamus is not required to resolve the issue presented to it on the merits. Application To The Case Identified In The Question In the case of &quot;a petition for writ of mandamus against this Court’s orders declining to dismiss the case and to certify an interlocutory appeal,&quot; the main procedural issue is whether the statutory remedy provided in cases where an interlocutory appeal can be certified to the 4th Circuit Court of Appeals was intended to abolish the common law writ of mandamus (which is not something that is constitutional in nature even though it is so ancient), in this situation by providing an alternative remedy. The government is probably arguing in this writ application that emoluments clause litigation is prohibited by Presidential immunity, and that even though they don't fall within the letter of the law authorizing an interlocutory appeal as a matter of right, that the litigation itself over the emoluments clause litigation against the President poses such a distraction to the conduct of the Presidency, that the purpose of Presidential immunity would be undermined by allowing the trial court lawsuit to go forward, even though a ruling against the President in this case could be appealed when and if a judgment is entered against the President on the claims presented in the case (logical quite similar to the reason that interlocutory appeals of denials of claims of qualified immunity in civil rights lawsuits are allowed). The government is probably also arguing that enforcement of the emoluments clause should be considered a &quot;political question&quot; that can only be enforced by Congress, for example, via impeachment, in which case the trial court would not have subject matter jurisdiction to consider the case. And, a lack of subject matter jurisdiction is a matter which is often a grounds for granting a writ of mandamus. The argument against granting a writ of mandamus is that the appellate courts shouldn't micromanage the pre-trial process in trial courts, that most of the distraction can be handled by lawyers for the President without interfering much with the President's day to day conduct of his office, and that the distractions caused by a civil lawsuit arising out of the business interests of someone who is the President are a risk that the President assumed when he took office without selling his business assets or putting them in a blind trust. Previous cases in the Nixon and Clinton administrations established that Presidential immunity does not provide a blanket prohibition upon lawsuits against a President while the President is in office. The case involving Clinton, Clinton v. Jones, 520 U.S. 681 (1997), established that a subpoena for a deposition in a private lawsuit unrelated to the President's duties or conduct in office in any way could go forward while the President was is in office, and his testimony in that deposition would later become the lynch pin of an unsuccessful effort to remove him from office via impeachment. The case involving Nixon, United States v. Nixon, 418 U.S. 683 (1974), which upheld the enforceability of a Watergate related subpoena is more clearly on point as it held that a President could be compelled to comply with a subpoena in a case that arguably had some relationship to his Presidential role and duties, although it was not cut and dried and Nixon's resignation made this largely a moot point. Both of these cases are controversial in conservative legal circles, and Brett Kavanaugh, recently confirmed as a justice of the U.S. Supreme Court, has gone on record stating that Presidential immunity has been too narrowly construed by the courts and that these U.S. Supreme Court precedents should be overturned or modified by the U.S. Supreme Court. The lawyers bringing the writ of mandamus in this action know that President Trump is unlikely to prevail in his arguments to dismiss or stay emoluments clause litigation (which is why he lost on that argument in the trial court and why the 4th Circuit refused to consider his interlocutory appeal) under the existing U.S. Supreme Court precedents described above, but might prevail and secure a narrowing of these precedents in the U.S. Supreme Court with its new solidly conservative majority. Even if the U.S. Supreme Court did deny the writ of mandamus, this wouldn't preclude the U.S. Supreme Court from later holding on a better developed trial court record, if and when the trial court ruled on the merits in the case, that Presidential immunity barred the lawsuit, contrary to the ruling of the trial court on this legal issue, if the 4th Circuit upheld a trial court's judgment against President Trump. Doing so would allow the U.S. Supreme Court to postpone having to resolve a politically sensitive issue of constitutional law that might never end up reaching them at all depending upon how the case plays out. And, this is what the U.S. Supreme Court usually does when it can. So, the U.S. Supreme Court needs to really feel strongly that interlocutory relief is the only adequate remedy in order to rule in the President's favor on this writ of mandamus petition.
Appellate judges make holdings on matters of law, and generally defer to the fact-finder in a given case (the jury, or sometimes the judge) on factual matters relevant to a case. So in a case that involved certain mathematical arguments, they would generally leave it to the jury to decide whether those arguments were reliable. Put simply, Appeals courts don't make binding decisions on issues of fact, only issues of law.
Ultimately the answer (in the US) is the US Constitution. The courts pretty much have the unlimited power to interpret the law, and the limits on power mainly pertain to what the state can do. The length of the leash on the government depends on what kind of rights are at stake. The weakest and default limit is known as "rational basis", and comes down to asking whether a government action is rationally related to a legitimate government interest (such as stopping terrorist attacks) plus whether there was due process and equal protection. There are more rigorous standards (intermediate scrutiny, strict scrutiny) in case a law involves a "suspect classification", or in case a fundamental constitutional right is infringed. In the case of strict scrutiny, the government would have to show that it had a compelling interest in the action, the law would have to be "narrowly tailored" (i.e. does that thing and only that thing), and should be the least restrictive way to achieve that result. Roe v. Wade is probably the best-know example of that kind of review, which held that abortion laws "violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy". A court would not order a party to do an impossible act. A court could order a party to do something which the party had argued was impossible, but you can interpret a court's decision to indicate that it rejected the argument. The defendant would not shoulder the burden of proving that the action was impossible, though they would have to counter the government's argument that the act could be performed if they believe it is not possible. (In the Apple case, the argument would probably be some Apple-internal document that says "Yeah, we can do it, but do we want to?"). There is probably an expense-related limit in that the courts would not order Apple to liquidate all of their assets to comply. But: if a case were to end up at the Supreme Court, the court is stricken with mass insanity and arbitrarily orders a defendant to do the impossible, there is only the option of impeachment and Senate trial to remove the offending justices, and that is just not going to happen. There is no higher authority that overturns SCOTUS.
Why do you want to know? I think that the reason this question seems so obscure is because it does not involve sufficient context and specificity. It can't be answered until one knows the reason that it matters to know if a rule is new or not. In a particular context, these questions usually have obvious and clear answers. The murkiness arises only when one tries to overgeneralize. The life of law is not reason, it is experience. In general, it is almost never fruitful to try to apply legal principles of any kind to their logical conclusion without grounding that logic in fact specific and context specific precedents and applications. That approach to legal reasoning is a classic rookie mistake that gets a lot of young associate attorneys doing legal research into trouble by overstating the confidence that they should have in their conclusions when there is no case right on point addressing a situation. For example, if a federal government agency publishes something in the federal register that does not exactly restate an existing regulation, then it is a rule change, in the narrow sense that is changes an existing published narrowly defined Code of Federal Regulations rule. The process by which one does so derives from the Administrative Procedures Act and other authorizing legislation passed by Congress and also custom and case law interpreting these, so it isn't self-referential. A completely different context in which the question of whether there is a "new rule" of law is when a court according to the principles of stare decisis makes a ruling interpreting the constitution in a manner different from or expanding upon previously rulings interpreting the constitution in a similar circumstance. In this context, this matters because a "new rule" of constitutional law is generally given only prospective effect, while an interpretation of an existing rule of law that merely expands upon existing precedents in a foreseeable way has retroactive effect. In this situation, as in any case in which one tries to determine the best definition to apply under the law, the best approach is to look for a definition that produces just results given the consequences of a particular definition v. another particular definition. In that context, the determination of whether a rule is a "new rule" should depend upon foreseeability and the amount of reliance that people put on the old rule as opposed to the new rule being in force. There is no good reason to have transsubstantive legal meta-rules that apply to both of these situations. The former mechanistic rule makes sense in its context and makes the status quo clear and the events that constitute a change in the rule clear, while the latter consequence oriented definition makes sense in the completely different context where it is used. Surely, there are other contexts in which the question of what constitutes a "new rule" could have different consequences still. For example, to determine what constitutes a new v. old rule of U.S. Senate procedure, or to determine which statute is newer or older for purposes of determining which statute of two that conflict should be given effect when there was a cosmetic recodification of the section numbers of one of the titles but not the other without changing the substantive meaning of the recodified statute. The determination should generally be made on a case by case basis as there is no important purpose served by having a uniform metarule to answer these questions. If you are getting paradoxes trying to apply your legal theory, you are probably doing it wrong. For what it is worth, I have a dim opinion of Hart as someone who uses lots of words to say nothing of consequence or use, and I am not familiar with Biagoli or Suber. In general, legal theorists are not terribly influential in how the law is applied and interpreted in practice, although, of course, there are always exceptions.
Is there precedent for Supreme Court justices recusing themselves from cases when they have strong ties to groups with strong opinions on the case? Not really. Supreme Court justices decide unreviewably whether or not to recuse themselves from cases, informed by general canons of judicial ethics which guide their decisions even though they are non-binding on Supreme Court justices. There is a strong record of Supreme Court justices recusing themselves from particular cases in which the justice was involved as lawyer prior to becoming a Supreme Court justice. There is also a fairly strong record of Supreme Court justices recusing themselves from cases where they have a strong, personal, and particularized to them (as opposed to general to people of their class and situation) financial interest (e.g. from cases involving companies in which they have large investments or family members who are top managers). In the example given of the 303 Creative LLC v. Elenis case, her strong ties to anti-gay Christian groups would normally not be a ground for recusal. General strong policy dispositions are normally not a basis for recusal. But, if instead, she were an investor in (or even a long time regular customer of) 303 Creative LLC, she would probably recuse.
The appellate court reviews based upon the trial court record. To the extent that it turns on questions of law, including interpretations of written documents whose authenticity is not in question, this review is de novo. Likewise, decisions on this issue made on a paper record and argument of counsel, without an evidentiary hearing that resolved material disputes of fact between the parties, are reviewed de novo. So are procedural question, like whether an evidentiary hearing should have been held. But, in cases where there is a mixed issue of fact and law, the appellate court defers to all findings of fact made in the trial court from an evidentiary hearing held in the trial court that are supported by admissible evidence in the trial court record. Since the material facts relating to the enforceability of arbitration are frequently not in dispute in a case like this and arbitration rulings are often made without evidentiary hearings, as for example, in this case and in this case, an appellate court often does engage in de novo review. But, the appellate court is not permitted to re-weigh the credibility of witnesses, for example, in a manner contrary to the trial court's findings of fact supported by admissible evidence in the record, if an evidentiary hearing was held and this was necessary to resolve disputed issues of fact that were material to the question of whether arbitration could be compelled. While what I have said above is somewhat different than the standards, for example, in New Jersey as stated in this document quoted below, this is to some extent a function of the facts of the referenced cases. None of which involve a refusal to compel arbitration following an evidentiary hearing involving disputed findings of fact. Appellate courts &quot;review de novo the trial court's judgment dismissing the complaint and compelling arbitration.&quot; Flanzman v. Jenny Craig, Inc., 244 N.J. 119, 131 (2020). See Skuse v. Pfizer, Inc., 244 N.J. 30, 46 (2020). &quot;Under N.J.S.A. 2A:24-7, either party may move to confirm an award within three months of the date of its delivery. Once confirmed, the award is as conclusive as a court judgment. N.J.S.A. 2A:24-10.&quot; Policeman's Benevolent Ass'n, Loc. 292 v. Borough of N. Haledon, 158 N.J. 392, 398 (1999). N.J.S.A. 2A:24-8 provides a court may vacate an arbitration award for: 1) corruption, fraud or undue means; 2) evident partiality or corruption in the arbitrators; 3) misconduct in refusing to postpone the hearing, upon sufficient cause being shown, or in refusing to hear evidence, pertinent and material to the controversy, or of any other misbehaviors prejudicial to the rights of any party; or 4) the arbitrators exceeded or so imperfectly executed their powers that a mutual, final and definite award upon the subject matter submitted was not made. &quot;Judicial review of an arbitration award is very limited.&quot; Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Linden Bd. of Educ. v. Linden Educ. Ass'n ex rel. Mizichko, 202 N.J. 268, 276 (2010)). &quot;To foster finality and 'secure arbitration's speedy and inexpensive nature,' reviewing courts must give arbitration awards 'considerable deference.'&quot; Borough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201-02 (2013)). &quot;[A]n arbitrator's award resolving a public sector dispute will be accepted so long as the award is 'reasonably debatable.'&quot; Borough of Carteret v. Firefighters Mut. Benevolent Ass'n, Loc. 67, 247 N.J. 202, 211 (2021) (quoting Borough of E. Rutherford v. E. Rutherford PBA Loc. 275, 213 N.J. 190, 201 (2013)). &quot;An arbitrator's award is not to be cast aside lightly. It is subject to being vacated only when it has been shown that a statutory basis justifies that action.&quot; Bound Brook Bd. of Educ. v. Ciripompa, 228 N.J. 4, 11 (2017) (quoting Kearny PBA Loc. # 21 v. Town of Kearny, 81 N.J. 208, 221 (1979)). Certain statutes, including the Alternative Procedure for Dispute Resolution Act, N.J.S.A. 2A:23A-1 to -30, set &quot;strict limits on the appeal of an arbitration award.&quot; Riverside Chiropractic Grp. v. Mercury Ins. Co., 404 N.J. Super. 228, 235 (App. Div. 2008). In support of a contrary view that even the findings of fact of the trial court are subject to de novo review are statements like this one (from this case): The existence of a valid and enforceable arbitration agreement poses a question of law, and as such, our standard of review of an order denying a motion to compel arbitration is de novo. Hirsch v. Amper Fin. Servs., L.L.C., 215 N.J. 174, 186 (2013); Frumer v. Nat'l Home Ins. Co., 420 N.J. Super. 7, 13 (App. Div. 2011). But, the cited cases don't mean precisely what they are purported to say in the rare case where the decision rests, for example, on resolved a disputed credibility decision between two witnesses over whether the purported arbitration document is authentic in an evidentiary hearing. Those cases are merely dicta as applied to that fact pattern. The case containing this quote was decided at the trial court level on the pleadings alone without receiving any testimony or documents in an evidentiary hearing (see footnote 1 at page 2). Hirsch was decided in motion practice without an evidentiary hearing (see page 184) and the case itself says (at page 186): Orders compelling arbitration are deemed final for purposes of appeal. R. 2:2–3(a); GMAC v. Pittella, 205 N.J. 572, 587, 17 A.3d 177 (2011). We review those legal determinations de novo. See Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995) (“A trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.”). The decision in Frummer was similarly qualified and also relied upon interpretation of written instruments whose execution was undisputed that was resolved in motion practice without any mention of an evidentiary hearing. The Court in Frummer said at page 13: We review the denial of a request for arbitration de novo. See Alfano v. BDO Seidman, LLP, 393 N.J.Super. 560, 572-73, 925 A.2d 22 (App.Div. 2007). &quot;A `trial court's interpretation of the law and the legal consequences that flow from established facts are not entitled to any special deference.'&quot; Id. at 573, 925 A.2d 22 (quoting Manalapan Realty, L.P. v. Twp. Comm. of Manalapan, 140 N.J. 366, 378, 658 A.2d 1230 (1995)). See also this case stating that: The existence of a valid and enforceable arbitration agreement poses a question of law, and as such, our standard of review of an order denying a motion to compel arbitration is de novo. Hirsch v. Amper Fin. Servs., LLC, 215 N.J. 174, 186 (2013); Frumer v. Nat'l Home Ins. Co., 420 N.J. Super. 7, 13 (App. Div. 2011). Again, however, I would question whether this holding is dicta because it involves the interpretation of written instruments whose authenticity is in doubt, and not, for example, a dispute over whether the person who signed the documents is the same person who is a party to this litigation and not someone else with a very similar name that was resolved in an evidentiary hearing.
1. Are this and similar ordinances constitutionally valid? Yes. Some future court might decide the law is invalid at some future time. But that possibility is hypothetical and speculative. Therefore, as of now, the law is valid unless and until it is challenged and overturned. 2. What defenses could a government make if challenged? It depends on what grounds the law is challenged. Your question about possible defenses is highly dependent on the nature of any challenge — which you have not specified in your question. The U.S. Constitution, for example, prohibits laws respecting a number of things such as freedom of the press, speech, religion, peaceful assembly, bearing arms, etc. to list just a few of the most notable ones. But your question does not assert the law in question violates any specific or particular prohibition against it. Although the question mentions "restricting free movement as well as targeting only a specific demographic," it does not specify any part of any constitution that prohibits these things. Therefore, your question is unclear as to what might present a constitutional problem for the law. It is also unclear which constitution you think might contain prohibitive language. Is it a federal constitutional issue that concerns you? Or is it a state constitutional matter? In either case, which issue specifically concerns you? Your question needs to address these specifics in order to analyze it and respond in a meaningful way. Look at it like this... just as it is impossible to prove a negative, so is it impossible for anyone to conclude with absolute certainty that any law is not unconstitutional because no one can predict with certainty every possible future challenge a law might face. There are just too many possibilities to (pre-emptively) exhaust them all with certainty. Also, no one can predict with certainty how any future court might rule on the future challenges (which themselves are unpredictable as previously argued). Therefore, one can only say I think the law is unconstitutional and here are my reasons. Then others can analyze the law and the reasons; then offer an opinion. Further, based on precedent, would they likely be successful? See above answer to question numbered 2. Laws aren't required to be "justified" by the constitution. Constitutional justification for a law is a meaningless phrase. There is no requirement for a law to be "justified" by any constitution other than that the legislature is empowered by the constitution to make laws. That's all the justification any law needs. Beyond that, however, no law can violate the constitution as determined by a Supreme Court (or the last court to rule) if challenged.