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

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.