Tuesday, July 13, 2010

Upon Vacating and Remanding

What should an intermediary appellate court do when the high court vacates one of its decisions and remands for further consideration in light of high court precedent?

Follow suit and treat the trial court decision likewise, says 9th Circuit Judge Gould.

He recently wrote, "[W]e do not see how it can ever be incorrect, once the Supreme Court has vacated a circuit court decision and remanded for further assessment in light of one of its decisions, for the court of appeals simply to vacate the district court’s decision and to remand for further proceedings in the light of the pertinent Supreme Court decision."

USD law prof Shaun Martin takes issue with the broadness of this claim on his California Appellate Report.