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Monograph Series · Third series › Part IV Finality, appeal and the correction of error › III-27 · First edition

Proceedings After Reversal and Remand: Binding Force and the Remaining Hearing

After a party wins in the higher court, can the court on remand again reach a different conclusion?

Part
Part IV Finality, appeal and the correction of error
Sections
6 sections
Length
about 26,300 words · 1 h 54 min
As of
2026-10-15
Volume contents
  1. Abstract
  2. Synthetic case
  3. 01The Distance Between Reversal and Victory
  4. 02The Scope of Binding Determinations
  5. 03Reopened Oral Argument
  6. 04The Composition of the Panel
  7. 05The Binding Effect in the Case at Hand
  8. 06The List of Remaining Relief

Abstract

This volume asks whether, after a party wins in the higher court, the court on remand can again reach a different conclusion. Only by separating the binding force of the determinations that formed the grounds for reversal from the hearing that remains open can remand be kept from being mistaken for either an automatic victory or an unlimited rehearing. The path to relief opens where the court follows the determinations that formed the grounds for reversal while hearing the remaining issues through new oral argument before a lawfully constituted panel, and closes where a party demands on remand, on the same premise, a conclusion contrary to the very binding determination that formed the grounds for reversal. The six sections address, in turn, the distance between reversal and victory, the scope of binding determinations, the reopened oral argument, the composition of the panel, the binding effect in the case at hand, and the list of remaining relief. The strongest counterargument is as follows. If the court remains bound by the earlier determination even when new materials have emerged, the discovery of truth is blocked. Competition among precedents and case management across instances are not addressed in this volume.

Synthetic case

The whole volume follows this invented case. It is not a real matter, and its facts are not legal findings.

Plaintiff A regards the reversal and remand as a final victory, but Defendant B raises, in the proceedings on remand, a defense that has not yet been adjudicated.

6 sections and their questions

  1. 01The Distance Between Reversal and Victory

    Is reversal and remand a final victory?

    19 min
  2. 02The Scope of Binding Determinations

    Does every sentence of the final appeal judgment bind the court on remand?

    18 min
  3. 03Reopened Oral Argument

    If binding force exists, does oral argument remain a mere formality?

    19 min
  4. 04The Composition of the Panel

    May a judge who participated in the earlier judgment hear the case again?

    18 min
  5. 05The Binding Effect in the Case at Hand

    Does a higher court's determination operate in the same way in other cases?

    19 min
  6. 06The List of Remaining Relief

    What remains undecided after remand?

    21 min
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