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Say the U.S. Court of Appeals for the 9th Circuit decides that the provision of a self-executing, ratified-by-the-U.S. international treaty which provides for an individual right does not provide such individual right. However, the Court of Appeals for the 7th Circuit decides (at a later time) that the treaty does indeed provide for an individual right in the U.S..

Is there, preferably a U.S. Supreme Court decision, or any other case law that decided that the newer circuit court decision relating to federal (or more narrowly relating to international law) should enjoy a rebuttable presumption to be correct over the older one or any case that decided that the circuit court with geographic jurisdiction should enjoy such a presumption regardless of its precedence or antecedence? Or else, is there anything similar that at least decided this question for the geographic jurisdiction of the 9th Circuit Court of Appeals, that is, is there such a precedent that declares it’s own authority in federal (or more narrowly) international law matters over the decisions of the U.S. court of appeals for any other circuit?

I understand that such out-of-circuit cases may be cited without a problem, and they will definitely have persuasive authority (unlike, for e.g. generally unpublished decisions), but the question is whether geographic or the temporal instancy in opposing decisions makes one over the other binding authority.

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The decisions of the U.S. Court of Appeals for the 9th Circuit are binding precedents on the lower federal courts of the 9th Circuit.

The decisions of the U.S. Court of Appeals for the 7th Circuit are binding precedents on the lower federal courts of the 7th Circuit.

These decisions are not binding precedents, even as to federal law, on state courts, or in any other circuits, although they are persuasive authority in all jurisdictions that don't have a contrary binding precedent.

When two circuits reach contrary legal conclusions in binding precedents, this is called a circuit split. Sometimes, circuit splits are resolved by the U.S. Supreme Court (a large share of its docket is devoted to such cases). Sometimes Congress wakes up and enacts a law that resolves the dispute if it involves a non-constitutional issue.

Sometimes (arguably, most of the time), circuit splits go unresolved for years or even decades, and the meaning of a federal law or a treaty in one part of the United States is different from the meaning of a federal law or a treaty in another part of the United States.

In some other circuit where the legal issue that is the subject of the circuit split is question of first impression with no binding case law decided in that circuit, the U.S. Court of Appeals for the Second Circuit, for example, the parties will offer up persuasive authority from the 7th and 9th Circuits that have previously issued binding precedents on the issue and will try to argue that the one that favors them is correct, or that there is a third way to consider the issue that also favors them.

Indeed, often the U.S. Supreme Court deliberately refrains from resolving circuit splits until a clear majority has emerged favoring one view or the other.

Even simply counting how many circuit splits exist is a surprisingly tricky matter. For example, one database estimates that 29%-41% of U.S. Supreme Court decisions in recent years resolved circuit splits (at the same link) but that was realistically an underestimate.

the question is whether geographic or the temporal instancy in opposing decisions makes one over the other binding authority.

There is not. There is no procedural rule that resolves a circuit split.

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  • Thank you! Is there procedural rules about the precedence of case law where it is used? Or was it merely decided by case law too? (I guess this would go all the way back to the roots of common law, but I’m thinking of the way U.S. state v. U.S. federal courts operate)
    – kisspuska
    Nov 22, 2021 at 22:23
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    I'm not saying for certain that there isn't, but I've never seen anyone cite to anything but case law and legal treatises on the priority of precedents in the three decades since I first took a class involving case law as an undergraduate.
    – ohwilleke
    Nov 22, 2021 at 22:26
  • Can share an examples of that? Or should I submit a new question on it?
    – kisspuska
    Nov 22, 2021 at 23:18
  • I find it interesting that the Supreme Court would follow the simplified methodology. I, for one, naturally thought of a decision of the Supreme Court to almost necessarily create multiple maxims, and never as one decision = one case law. I’m really surprised that the introduced methodology to account for the circuit splits had this binary look at the issue.
    – kisspuska
    Nov 23, 2021 at 0:33
  • I would also add one more layer to the matrix of these complexities: Defining what is a good and not good performance on the lower courts by counting for the times that a construction once reversed by the Supreme Court and later overruled by another panel of the Supreme Court (I read someone’s comment on the site about a number in the 100’s about the time S. Ct. overruled its previous decisions, but it also could be somewhat useful to see how many times each lower court has been able to “predict” a lasting apolitical construction of the law). Prob wouldn’t be conclusive due to sample size.
    – kisspuska
    Nov 23, 2021 at 0:44

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