Deciding When to Decide: How Appellate Procedure Distributes the Costs of Legal Change

62 Pages Posted: 15 Feb 2010 Last revised: 17 Jan 2011

Date Written: January 14, 2011


Legal change is a fact of life. The need to deal with legal change has spawned a number of complicated bodies of doctrine. Some of these issues have been studied extensively, such as doctrines concerning the retroactivity of new law and the question whether inferior courts can anticipatorily overrule a moribund superior court precedent. How such questions are answered affects the size and the distribution of the costs of legal change. Less appreciated is the way that heretofore almost invisible matters of appellate procedure and case handling also allocate the costs of legal transitions. In particular, this Article focuses on lower courts’ discretionary decisions about when to decide the cases that come before them: should lower courts continue to decide cases in the regular course even when a change in law is in the offing, or should they delay adjudication until after the dust has settled?

The Article has both positive and normative aspects. It begins by drawing together several bodies of doctrine in order to present a unified account of what we can call our system’s “law of legal change.” The Article then presents a case study of the six-month interval between Blakely v. Washington, which invalidated a state sentencing scheme and cast substantial doubt on federal sentencing guidelines, and United States v. Booker, which then held Blakely applicable to the federal system. A majority of the federal courts of appeals that addressed the question upheld the federal guidelines during this transitional interval. Beneath the surface, however, the various courts upholding the guidelines managed cases very differently, particularly when it came to questions of timing. As a result, some circuits bore much of the cost of legal change themselves, while others shifted some of the cost to litigants and other courts. Although that episode is unusual in terms of the size and salience of the case-management problem, the same general phenomena routinely manifest themselves on a smaller scale. Having described what courts actually do, I then suggest a framework for evaluating and perhaps improving how courts process cases during transitional periods. Case-management decisions are highly context-specific, which makes it difficult and perhaps undesirable to formulate general rules, but we might be able to improve courts’ handling of such matters by altering the institutional environment and modifying incentives.

Keywords: Appellate Procedure, Booker, Abeyance, Retroactivity, Federal Courts, courts of appeals, Blakely, abstention

Suggested Citation

Bruhl, Aaron-Andrew P., Deciding When to Decide: How Appellate Procedure Distributes the Costs of Legal Change (January 14, 2011). Cornell Law Review, Vol. 96, No. 2, 2011, Available at SSRN:

Aaron-Andrew P. Bruhl (Contact Author)

William & Mary Law School ( email )

South Henry Street
P.O. Box 8795
Williamsburg, VA 23187-8795
United States

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