We’ve Only Just Begun: The Impact of Remand & Orders from Higher to Lower Courts on American Jurisprudence
Michael A. Berch
Arizona State University (ASU) - Sandra Day O'Connor College of Law
Arizona State Law Journal, Vol. 36, 2004
The American judicial system is hierarchical, consisting of trial and appellate courts. The doctrine of precedent is deeply ingrained in the fabric of judicial practice and its validity is seldom questioned. Nowhere should it be more embedded than with respect to adherence to remand orders issued by appellate courts. Yet any serious study of remand orders reveals systemic problems in our American jurisprudence. In many cases judicial discretion is virtually unlimited and different judges may respond differently to identical remand directions.
When the appellate court reverses or vacates a lower court decision, it may under certain circumstances enter final judgment. Under those circumstances, there is nothing for the lower court to do other than to perform matters that may be properly considered ministerial. But if the appellate court's decision does not terminate the case, the court will ordinarily remand the matter to a lower court for appropriate consideration and action. This remand order, and the decision upon which it rests (sometimes loosely referred to as the "mandate"), forms the basis for further proceedings.
This article provides an introduction to understanding remand orders. As this article illustrates, the law governing remands is fluid. One court may feel more constrained than not, depending not so much on the language of the remand order or abstract judicial philosophy regarding the role of the courts as on the particular predilections of the judge regarding the proper outcome of the case.
Number of Pages in PDF File: 20
Keywords: remand, appellate court, predecentAccepted Paper Series
Date posted: June 24, 2009
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