UPDATES & ANALYSIS

9.07

Eighth Circuit Panels No Longer “Free to Choose”

by Ryan Koopmans | September 7, 2011

By Ryan Koopmans

In the Eighth Circuit, as in every other circuit, one three-judge panel may not overrule a decision of a previous panel.  But what happens when the later panel overlooks a previous decision and reaches the opposite outcome?  These intra-circuit splits don’t occur often, but they do happen.  The court issues hundreds of decisions each year; it’s not surprising that the attorneys and judges overlook precedent on occasion.

Until today, an Eighth Circuit panel confronting an intra-circuit split was free to choose the decision it found most persuasive.  And the panel after that was free to do the same.  So were district courts within the circuit. That rule has been criticized by some members of the court, and has now been overruled by the court’s en banc decision in  Mader v. United States.  Bringing the Eighth Circuit in line with the majority of circuits, the court held that a panel facing an intra-circuit split must follow the earlier decision, “as it should have controlled the subsequent panels that created the conflict.”

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