An appellate panel is generally bound by earlier decisions of the same court,
which is what makes intermediate appellate law predictable.
The prior panel rule. A panel may not overrule a prior published decision of
the same court. Only the court sitting en banc, or a higher court, may.
Exceptions. Intervening authority from a higher court or from the
legislature that is clearly inconsistent; and in some courts, a decision that
overlooked controlling authority.
Distinguishing. The ordinary route. A later panel may confine an earlier
decision to its facts where the case before it is materially different, and much
appellate advocacy consists of characterizing the earlier decision’s holding
narrowly or broadly.
Dicta. Statements not necessary to the result are not binding, and the line
between holding and dictum is argued in nearly every case that turns on
precedent.
Conflicts within a court. Where two lines of authority exist, some courts
follow the earliest, others the most recent. The local rule matters and should
be researched rather than assumed.
En banc. Available to resolve intra-court conflicts and questions of
exceptional importance, and rarely granted.
Practical advocacy. Where a controlling decision is against you, identify
whether the route is distinguishing, an exception, or en banc — and say which.
