The quick answer that comes to mind: Because courts have no authority to
issue holdings apart from judgments in the first place. That is,
federal courts can't issue advisory opinions apart from a genuine case or
controversy under Article III.
From: Marty Lederman [EMAIL PROTECTED]
Yes, of course. But in that case -- and in light of the fact that the
*judgment* is not binding on future litigants, or on future courts -- what is
it, exactly, that makes a holding, or opinion, binding on district courts and
future panels, in the first place?
The quick answer that comes
It seems to me the thing that distinguishes a holding from an advisory
opinion is that the holding results from a competently litigated case. By
reversing the judgment on the grounds that Newdown lacked standing, the SC
was also asserting that the case was not competently litigated -- i.e.
1. A court of appeals decision is binding on a district court because lower
courts have to follow higher courts. If there's any discretion as to the
scope of that rule, the discretion would lie not with the lower courts but
somewhere else (i.e., the appeals court's own rules as to precedent,
Marty makes an excellent point that the pledge case can be distinguished
from McCreary County and many other Establishment Clause cases because it
deals with religion in the public schools.
Footnote 22 may not only have been unnecessary, however, it is
unfortunate for another reason.
This is also having an immediate impact on the prisoner litigation out
there in the Sixth Circuit. In Jenkins v. Martin, a case involving a
religious group called the Melanics (an offshoot Islamic group), the
Melanics have been attempting to use RLUIPA challenge the fact that they
were banned
There is definitely cause for concern in the 6th Circuit, but I wouldn't
worry about it as much in other jurisdictions. This is, after all, the
Circuit that went out on a limb to strike down RLUIPA on an
Establishment Cls theory that had been uniformly rejected by appellate
courts (as against
An 800 year old Buddhist monastic QiGong tradition now has two
lineage holders. One is a monk and the other is a lay person. The
lay lineage holder is trying to set up a way to spread QiGong healing
techniques throughout the US and to allow the people trained in this
technique and
1. My understanding (although this could be
mistaken) is that there was a case or controversy in Newdow -- the only
thing missing was "prudential" standing.
2. In any event, even if it were later
determined that there had been no case or controversy, I don't see why it would
follow
