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Precedent Times Three: Stare Decisis In The Divided Fifth Circuit

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Title: Precedent Times Three: Stare Decisis In The Divided Fifth Circuit
Author: Baker, Thomas E.
Abstract: This 1981 article is written in anticipation of the Fifth Circuit Court of Appeals Reorganization Act of 1980. The Act divided the “former Fifth Circuit” into two completely autonomous judicial circuits: the “new Fifth Circuit,” composed of the District of the Canal Zone, Louisiana, Mississippi, and Texas, and the new “Eleventh Circuit,” composed of Alabama, Florida, and Georgia. The article analyzes the novel issues of stare decisis raised by the Act. The article begins by providing an historical context, tracing the evolution of the United States Courts of Appeals and the particular developments leading to the scheduled division. The article then discusses the stare decisis problems created by the Act, and predicts how the courts will handle those problems. Professor Baker predicts that the former Fifth Circuit case law will bind each of the three affected courts. Professor Baker then analyzes whether the division should affect the precedential value of the former court’s decision. After considering history, legislative intent, and judicial policy, Professor Baker argues against the wholesale transfer of former Fifth Circuit precedent into the two new courts. Thus, while predicting that the judges of the two new courts will consider themselves bound by the former precedents, Professor Baker disagrees with the way he predicts the courts will approach the issue. Professor Baker concedes that the article raises more questions than it answers, stating that part of the responsibility of judging is to answer hard questions such as those presented in the article.
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Date: 1981

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