Patricia Hart v. Larry G. Massanari, Acting Commissioner of Social Security Administration

Appellant’s opening brief cites Rice v. Chater, No. 95-35604, 1996 WL 583605 (9th Cir. Oct.9, 1996). Rice is an unpub *1159 lished disposition, not reported in the Federal Reporter except as a one-line entry in a long table of cases. See Decisions Without Published Opinions, 98 F.3d 1345, 1346 tbl. (9th Cir.1996). The full text of the disposition can be obtained from our clerk’s office, and is available on Westlaw® and LEXIS®. However, it is marked with the following notice: “This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3.” Our local rules are to the same effect: “Unpublished dispositions and orders of this Court are not binding precedent ... [and generally] may not be cited to or by the courts of this circuit .... ” 9th Cir. R. 36-3.

We ordered counsel to show cause as to why he should not be disciplined for violating Ninth Circuit Rule 36-3. Counsel responds by arguing that Rule 36-3 may be unconstitutional. He relies on the Eighth Circuit’s opinion in Anastasoff v. United States, 223 F.3d 898, vacated as moot on reh’g en banc, 235 F.3d 1054 (8th Cir.2000). Anastasoff, while vacated, continues to have persuasive force. See, e.g., Williams v. Dallas Area Rapid Transit, 256 F.3d 260 (5th Cir.2001) (Smith, J., dissenting from denial of reh’g en banc). 1 It may seduce members of our bar into violating our Rule 36-3 under the mistaken impression that it is unconstitutional. We write to lay these speculations to rest.

I

A. Anastasoff held that Eighth Circuit Rule 28A(i), which provides that unpublished dispositions are not precedential— and hence not binding on future panels of that court 2 — violates Article III of the Constitution. See 223 F.3d at 899. According to Anastasoff, exercise of the “judicial Power” precludes federal courts *1160 from making rulings that are not binding in future eases. Or, to put it differently, federal judges are not merely required to follow the law, they are also required to make law in every case. To do otherwise, Anastasoff argues, would invite judicial tyranny by freeing courts from the doctrine of precedent: “ ‘A more alarming doctrine could not be promulgated by any American court, than that it was at liberty to disregard all former rules and decisions, and to decide for itself, without reference to the settled course of antecedent principles.’ ” Id. at 904 (quoting Joseph Story, Commentaries on the Constitution of the United States § 377 (1833)). 3

We believe that Anastasoff overstates the case. Rules that empower courts of appeals to issue nonprecedential decisions do not cut those courts free from all legal rules and precedents; if they did, we might find cause for alarm. But such rules have a much more limited effect: They allow panels of the courts of appeals to determine whether future panels, as well as judges of the inferior courts of the circuit, will be bound by particular rulings. This is hardly the same as turning our back on all precedents, or on the concept of precedent altogether. Rather, it is an effort to deal with precedent in the context of a modern legal system, which has evolved considerably since the early days of common law, and even since the time the Constitution was adopted.

The only constitutional provision on which Anastasoff relies is that portion of Article III that vests the “judicial Power” of the United States in the federal courts. U.S. Const, art. Ill, § 1, cl. 1. Anastasoff may be the first case in the history of the Republic to hold that the phrase “judicial Power” encompasses a specific command that limits the power of the federal courts. There are, of course, other provisions of Article III that have received judicial enforcement, such as the requirement that the courts rule only in “Cases” or “Controversies,” see, e.g., Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992), and that the pay of federal judges not be diminished during their good behavior. See, e.g., United States v. Hatter, 532 U.S. 557, -, 121 S.Ct. 1782, 1790-91, 149 L.Ed.2d 820 (2001). The judicial power clause, by contrast, has never before been thought to encompass a constitutional limitation on how courts conduct their business.

There are many practices that are common or even universal in the federal courts. Some are set by statute, such as the courts’ basic organization. See, e.g., 28 U.S.C. § 43 (creating a court of appeals for each circuit); 28 U.S.C. § 127 (dividing Virginia into two judicial districts); 28 U.S.C. § 2101 (setting time for direct appeals to the Supreme Court and for applications to the Supreme Court for writs of certiorari). See generally David McGowan, Judicial Writing and the Ethics of the Judicial Office, 14 Geo. J. Legal Ethics 509, 509-10 (2001). Others are the result of tradition, some dating from the days of the common law, others of more recent origin. Among them are the practices of issuing written opinions that speak for the court rather than for individual judges, adherence to the adversarial (rather than inquisitorial) model of developing cases, limits on the exercise of equitable relief, *1161 hearing appeals with panels of three or more judges and countless others that are so much a part of the way we do business that few would think to question them.' While well established, it is unclear that any of these practices have a constitutional foundation; indeed, Hart (no relation so far as we know), in his famous Dialogue, concluded that Congress could abolish the inferior federal courts altogether. See Henry M. Hart, Jr., The Power of Congress to Limit the Jurisdiction of Federal Courts: An Exercise in Dialectic, 66 Harv. L.Rev. 1362, 1363-64 (1953). While the greater power does not always include the lesser, the Dialogue does suggest that much .of what the federal courts do could be modified or eliminated without offending the Constitution.

Anastasoff focused on one aspect of the way federal courts do business — the way they issue opinions — and held that they are subject to a constitutional limitation derived from the Framers’ conception of what it means to exercise the judicial power. Given that no other aspect of the way courts exercise their power has ever been held subject to this limitation, 4 we question whether the “judicial Power” clause contains any limitation at all, separate from the specific limitations of Article III and other parts of the Constitution. The more plausible view is that when the federal courts rule on cases or controversies assigned to them by Congress, comply with due process, accord trial by jury where commanded by the Seventh Amendment and generally comply with the specific constitutional commands applicable to judicial proceedings, they have ipso facto exercised the judicial power of the United States. In other words, the term “judicial Power” in Article III is more likely descriptive than prescriptive. 5

*1162 If we nevertheless were to accept Anas-tasoff’s premise that the phrase “judicial Power” contains limitations separate from those contained elsewhere in the Constitution, we should exercise considerable caution in recognizing those limitations, lest we freeze the law into the mold cast in the eighteenth century. The law has changed in many respects since the time of the Framing, some superficial, others quite fundamental. For example, as Professor William Nelson has convincingly demonstrated, colonial juries “usually possessed the power to find both law and fact in the cases in which they sat,” and were not bound to follow the instructions given to them by judges. See William E. Nelson, Marbury v. Madison: The Origins and Legacy of Judicial Review 16-17 (2000). Today, of course, we would consider it unfair — probably unconstitutional — to allow juries to make up the law as they go along.

Another example: At the time ■ of the Framing, and for some time thereafter, the practice that prevailed both in the United States and England was for judges of appellate courts to express separate opinions, rather than speak with a single (or at least majority) voice. The practice changed around the turn of the nineteenth century, under the leadership of Chief Justice Marshall. See George L. Haskins & Herbert A. Johnson, Foundations of Power: John Marshall, 1801-15, in 2 The Oliver Wendell Holmes Devise: History of the Supreme Court of the United States 382-89 (Paul A. Freund ed., 1981).

And yet another example: At the time of the Framing, and for some time thereafter, it was considered entirely appropriate for a judge to participate in the appeal of his own decision; indeed, before the creation of the Circuit Courts of Appeals, appeals from district court decisions were often taken to a panel consisting of a Supreme Court Justice riding circuit, and the district judge from whom the decision was taken. Act of March 2, 1793, ch. 22, § 1, 1 Stat. 333; see also Charles Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure § 3504 (2d ed.1984). Today, of course, it is widely recognized that a judge may not hear the appeal from his own decision. There are doubtless many more such examples. 6

*1163 One danger of giving constitutional status to practices that existed at common law, but have changed over time, is that it tends to freeze certain aspects of the law into place, even as other aspects change significantly. See note 6 supra. This is a particularly dangerous practice when the constitutional rule in question is not explicitly written into the Constitution, but rather is discovered for the first time in a vague, two-centuries-old provision. The risk that this will allow judges to pick and choose those ancient practices they find salutary as a matter of policy, and give them constitutional status, is manifest. Compare Richard S. Arnold, Unpublished Opinions: A Comment, 1 J.App. Prac. & Process 219 (1999) (suggesting that all opinions be published and given prece-dential value), with Anastasoff, 223 F.3d 898 (holding that the Eighth Circuit’s rule barring citation to unpublished opinions violates Article III). Thus, in order to follow the path forged by Anastasoff, we would have to be convinced that the practice in question was one the Framers considered so integral and well-understood that they did not have to bother stating it, even though they spelled out many other limitations in considerable detail. Specifically, to adopt Anastasoff’s position, we would have to be satisfied that the Framers had a very rigid conception of precedent, namely that all judicial decisions necessarily served as binding authority on later courts.

This is, in fact, a much more rigid view of precedent than we hold today. As we explain below, most decisions of the federal courts are not viewed as binding precedent. No trial court decisions are; almost four-fifths of the merits decisions of courts of appeals-are not. See p. 1177 infra. 7 To be sure, Anastasoff challenges the latter practice. We find it significant, however, that the practice has been in place for a long time, yet no case prior to Anastasoff has challenged its constitutional legitimacy. The overwhelming consensus in the legal community has been that having appellate courts issue nonprecedential decisions is not inconsistent with the exercise of the judicial power.

To accept Anastasoff’s argument, we would have to conclude that the generation of the Framers had a much stronger view of precedent than we do. In fact, as we explain below, our concept of precedent today is far stricter than that which prevailed at the time of the Framing. The Constitution does not contain an express prohibition against issuing nonprecedential opinions because the Framers would have seen nothing wrong with the practice.

B. Modern federal courts are the successors of the English courts that developed the common law, but they are in many ways quite different, including how they understand the concept of precedent. Common law judges did not make law as we understand that concept; rather, they “found” the law with the help of earlier cases that had considered similar matters. An opinion was evidence of what the law *1164 is, but it was not an independent source of law. See Theodore F.T. Plucknett, A Concise History of the Common Law 343-44 (5th ed.1956). 8 The law was seen as something that had an existence independent of what judges said: “a miraculous something made by nobody ... and merely declared from time to time by the judges.” 2 John Austin, Lectures on Jurisprudence or The Philosophy of Positive Law 655 (4th ed. 1873) (emphasis omitted). Opinions were merely judges’ efforts to ascertain the law, much like scientific experiments were efforts to ascertain natural laws. If an eighteenth-century judge believed that a prior case was wrongly decided, he could say that the prior judge had erred in his attempt to discern the law. See Bole v. Horton, 124 Eng. Rep. 1113, 1124 (C.P.1673). Neither judges nor lawyers understood precedent to be binding in Anasta-soff’s strict sense. 9

One impediment to establishing a system of strict binding precedent was the absence at common law of a distinct hierarchy of courts. See Plucknett, supra, at 350. 10 Only towards the end of the nineteenth century, after England had reorganized its courts, was the position of the House of Lords at the head of its judicial hierarchy confirmed. Before that, there *1165 was no single high court that could definitively say what the law was. Thus, as late as the middle of the nineteenth century, an English judge might ignore decisions of the House of Lords, 11 and the Exchequer and Queen’s Bench held different views on the same point as late as 1842. 12 See id. at 350. Common law judges looked to earlier cases only as examples of policy or practice, and a single case was generally not binding authority. 13 Eighteenth-century judges did not feel bound to follow most decisions that might lead to inconvenient results, and judges would even blame reporters for cases they disliked. See Pluck-nett, supra, at 349.

The idea that judges declared rather than made the law remained firmly entrenched in English jurisprudence until the early nineteenth century. David M. Walker, The Oxford Companion to Law 977 (1980). Blackstone, who wrote his Commentaries only two decades before the Constitutional Convention and was greatly respected and followed by the generation of the Framers, noted that “the ‘law,’ and the ‘opinion of the judge’ are not ... one and the same thing; since it sometimes may happen that the judge may mistake the law”; in such cases, the precedent simply “was not law.” 1 William Blackstone, Commentaries *70-71 (1765).

For centuries, the most important sources of law were not judicial opinions themselves, but treatises that restated the law, such as the commentaries of Coke and Blackstone. Because published opinions were relatively few, lawyers and judges *1166 relied on commentators’ synthesis of decisions rather than the verbatim text of opinions. 14

Case reporters were entrepreneurs who scribbled down jury charges as they were delivered by judges, then printed and sold them. Or, reporters might cobble together case reports from secondhand sources and notes found in estates, sometimes years after the cases were decided. See Robert C. Berring, Legal Research and Legal Concepts: Where Form Molds Substance, 75 Cal. L.Rev. 15, 18-19 (1987). For example, Heydon’s Case was decided in 1584, but Lord Coke did not publish his account of it until 1602. See Allen Dillard Boyer, “Understanding, Authority, and Will”: Sir Edward Coke and the Elizabethan Origins of Judicial Review, 39 B.C. L.Rev. 43, 79 (1997). Not surprisingly, case reports often contradicted each other in describing the reasoning, and even the names, of particular cases. See Berring, supra, at 18. 15 The value of case reports turned not on the accuracy of the report but on the acuity of their authors. See id. at 18-19. 16

Coke’s intellectual reputation made him the most valued, and the most famous; of the private reporters. His reports were not verbatim transcriptions of what the judges actually said, but vehicles for Coke’s own jurisprudential and political agenda. See Boyer, supra, at 80 (“In the name of judicial reason, Coke was willing to rewrite the law.... In 1602, his chief way of shaping the law was in the way he reported it.”). Like other reporters, Coke often distorted the language and meaning of prior decisions that were inconsistent with what he considered the correct legal principle. See Harold J. Berman & Charles J. Reid, Jr., The Transformation of English Legal Science: From Hale to Blackstone, 45 Emory L.J. 437, 447 (1996). “There was no clear boundary in his mind between what a case said and what he thought it ought to say, between the reasons which actually prompted the decision, and the elaborate commentary which he could easily weave around any question.” *1167 Plueknett, supra, at 281. 17 Contrary to Anastasoff’s view, it was emphatically not the case that all decisions of common law courts were treated as precedent binding on future, courts unless distinguished or rejected. Rather, case reporters routinely suppressed or altered cases they considered wrongly decided. Indeed, sorting out the decisions that deserved reporting from those that did not became one of their primary functions. 18

A survey of the legal landscape as it might have been viewed by the generation of the Framers casts serious doubt on the proposition — so readily accepted by Anas- tosojff — that the Framers viewed precedent in the rigid form that we view it today. Indeed, it is unclear that the Framers would have considered our view of precedent desirable. 19 The common law, at its core, was a reflection of custom, and custom had a built-in flexibility that allowed it to change with circumstance. Thus, “when Lord Mansfield incorporated the custom of merchants into the common law, it was a living flexible custom, responding to the growth and change of mercantile habits.” Plueknett, supra, at 350. Embodying that custom into a binding decision raised the danger of ossifying the custom: “[I]f perchance a court has given a decision on a point of that custom, it loses for ever its flexibility and is fixed by the rule of precedent at the point where the court touched it.” Id. It is entirely possible that lawyers of the eighteenth century, had they been confronted with the regime of rigid precedent that is in common use today, would have reacted with alarm. 20

*1168 The modern concept of binding precedent — where a single opinion sets the course on a particular point of law and must be followed by courts at the same level and lower within a pyramidal judicial hierarchy — came about only gradually over the nineteenth and early twentieth centuries. Lawyers began to believe that judges made, not found, the law. This coincided with monumental improvements in the collection and reporting of case authorities. As the concept of law changed and a more comprehensive reporting system began to take hold, it became possible for judicial decisions to serve as binding authority. 21

Early American reporters resembled their English ancestors — disorganized and meager 22 — but the character of the report *1169 ing process began to change, after the Constitution was adopted, with the emergence of official reporters in the late eighteenth century and the early nineteenth century. See Berring, supra, at 20-21. And, later in the nineteenth century, the West Company began to publish standardized case reporters, which were both accurate and comprehensive, making “it possible to publish in written form all of the decisions of courts.” Id. at 21. Case reports grew thicker, and the weight of precedent began to increase — weight, that is, in terms of volume.

The more cases were reported, the harder became the task of searching for relevant decisions. At common law, circuit-riding judges often decided cases without referring to any reporters at all, see Fentum v. Pocock, 5 Taunt. 192, 195, 128 Eng. Rep. 660, 662 (C.P.1813) (Mansfield, C.J.) (“It [was] utterly impossible for any Judge, whatever his learning and abilities may be, to decide at once rightly upon every point which [came] before him at Nisi Prius .... ”), and reporters simply left out decisions they considered wrong or those that merely repeated what had come before. Sir Francis Bacon recommended that cases “merely of iteration and repetition” be omitted from the ease reports altogether, and Coke warned judges against reporting all of their decisions for fear of weighing down the law. See Kirt Shuld-berg, Digital Influence: Technology and Unpublished Opinions in the Federal Courts of Appeals, 85 Cal. L.Rev. 541, 545 & n. 8 (1997). Indeed, the English opinion-reporting system has never published, and does not today publish, every opinion of English appellate courts, even though the total number of opinions issued each year in both the English Court of Appeal and House of Lords combined is little more than 1000 — less than a quarter of the number of dispositions issued annually by the Ninth Circuit in recent years, see note 37 infra. Robert J. Martineau, Appellate Justice in England and the United States: A Comparative Analysis 107, 150 (1990); Robert J. Martineau, Restrictions on Publication and Citation of Judicial Opinions: A Reassessment, 28 U. Mich. J.L. Ref. 119,136 (1995). 23

II

Federal courts today do follow some common law traditions. When ruling on a novel issue of law, they will generally consider how other courts have ruled on the same issue. This consideration will not be limited to courts at the same or higher level, or even to courts within the same system of sovereignty. Federal courts of appeals will cite decisions of district courts, even those in other circuits; the Supreme Court may cite the decisions of the inferior courts, see, e.g., City of Richmond v. J.A. Croson Co., 488 U.S. 469, 491, 109 S.Ct. 706, 102 L.Ed.2d 854 (1989) (citing Associated Gen. Contractors of Cal. v. City & County of San Francisco, 813 F.2d 922, 929 (9th Cir.1987)), or those of the state courts, see, e.g., Lujan v. G & G Fire Sprinklers, Inc., 532 U.S. 189, 121 S.Ct. 1446, 1452, 149 L.Ed.2d 391 (2001) *1170 (citing J & K Painting Co. v. Bradshaw, 45 Cal.App.4th 1394, 1402, 53 Cal.Rptr.2d 496 (Cal.Ct.App.1996)). It is not unusual to cite the decision of courts in foreign jurisdictions, so long as they speak to a matter relevant to the issue before us. See, e.g., Mozes v. Mozes, 239 F.3d 1067, 1071 (9th Cir.2001). The process even extends to non-case authorities, such as treatises and law review articles. See id. at 1071 & n. 7.

Citing a precedent is, of course, not the same as following it; “respectfully disagree” within five words of “learned colleagues” is almost a cliche. After carefully considering and digesting the views of other courts and commentators — often giving conflicting guidance on a novel legal issue — courts will then proceed to follow one line of authority or another, or sometimes strike out in a completely different direction. While we would consider it bad form to ignore contrary authority by failing even to acknowledge its existence, it is well understood that — in the absence of binding precedent — courts may forge a different path than suggested by prior authorities that have considered the issue. So long as the earlier authority is acknowledged and considered, courts are deemed to have complied with their common law responsibilities.

But precedent also serves a very different function in the federal courts today, one related to the horizontal and vertical organization of those courts. See John Harrison, The Power of Congress Over The Rules of Precedent, 50 Duke L.J. 503 (2000). A district judge may not respectfully (or disrespectfully) disagree with his learned colleagues on his own court of appeals who have ruled on a controlling legal issue, or with Supreme Court Justices writing for a majority of the Court. 24 Binding authority within this regime cannot be considered and cast aside; it is not merely evidence of what the law is. Rather, caselaw on point is the law. If a court must decide an issue governed by a prior opinion that constitutes binding authority, the later court is bound to reach the same result, even if it considers the rule unwise or incorrect. Binding authority must be followed unless and until overruled by a body competent to do so.

In determining whether it is bound by an earlier decision, a court considers not merely the “reason and spirit of cases” but also “the letter of particular precedents.” Fisher v. Prince, 97 Eng. Rep. 876, 876 (K.B.1762). This includes not only the rule announced, but also the facts giving rise to the dispute, other rules considered and rejected and the views expressed in response to any dissent or concurrence. 25 Thus, when crafting binding *1171 authority, the precise language employed is often crucial to the contours and scope of the rule announced. 26

Obviously, binding authority is very powerful medicine. A decision of the Supreme Court will control that corner of the law. unless and until the Supreme Court itself overrules or modifies it. Judges of the inferior courts may voice their criticisms, but follow it they must. See, e.g., Ortega v. United States, 861 F.2d 600, 603 & n. 4 (9th Cir.1988) (“This case is squarely controlled by the Supreme Court’s recent decision.... [We] agree[ ] with the dissent that [appellant] deserves better treatment from our Government. Unfortunately, legal precedent deprives us of discretion to do equity.”). The same is true as to circuit authority, although it usually covers a much smaller geographic area. 27 Circuit law, a concept wholly unknown at the time of the Framing, see Danny J. Boggs & Brian P. Brooks, Unpublished Opinions & the Nature of Precedent, 4 Green Bag 2d 17, 22 (2000), binds all courts within a particular circuit, including the court of appeals itself. Thus, the first panel to consider an issue sets the law not only for all the inferior courts in the circuit, but also future panels of the court of appeals.

Once a panel resolves an issue in a precedential opinion, the matter is deemed resolved, unless overruled by the court itself sitting en banc, or by the Supreme Court. 28 As Anastasojf itself states, a later three-judge panel considering a case that is controlled by the rule announced in an earlier panel’s opinion has no choice but to apply the earlier-adopted rule; it may not any more disregard the earlier panel’s opinion than it may disregard a ruling of the Supreme Court. Anastasoff, 223 F.3d at 904; see also Santamaria v. Horsley, 110 F.3d 1352, 1355 (9th Cir.1997) (“It is settled law that one three-judge panel of this court cannot ordinarily reconsider or overrule the decision of a prior panel.”), rev’d, 133 F.3d 1242 (9th Cir.) (en banc), amended by 138 F.3d 1280 (9th Cir.), cert. denied, 525 U.S. 823-24, 119 S.Ct. 68, 142 L.Ed.2d 53 (1998); Montesano v. Seafirst Commercial Corp., 818 F.2d 423, 425-26 (5th Cir.1987) (A “purpose of institutional orderliness [is served] by our insistence that, in the absence of intervening Supreme Court precedent, one panel cannot overturn another panel, regardless of how *1172 wrong the earlier panel decision may seem to be.”)• Designating an opinion as binding circuit authority is a weighty decision that cannot be taken lightly, because its effects are not easily reversed. Whether done by the Supreme Court or the court of appeals through its “unwieldy” and time-consuming en banc procedures, Richard A. Posner, The Federal Courts: Crisis and Reform 101 (1985), 29 overruling such authority requires a substantial amount of courts’ time and attention — two commodities already in very short supply.

Controlling authority has much in common with persuasive authority. Using the techniques developed at common law, a court confronted with apparently controlling authority must parse the precedent in light of the facts presented and the rule announced. Insofar as there may be factual differences between the current case and the earlier one, the court must determine whether those differences are material to the application of the rule or allow the precedent to be distinguished on a principled basis. Courts occasionally must reconcile seemingly inconsistent precedents and determine whether the current case is closer to one or the other of the earlier opinions. See, e.g., Mont. Chamber of Commerce v. Argeribright, 226 F.3d 1049, 1057 (9th Cir.2000).

But there are also very important differences between controlling and persuasive authority. As noted, one of these is that, if a controlling precedent is determined to be on point, it must be followed. Another important distinction concerns the scope of controlling authority. Thus, an opinion of our court is binding within our circuit, not *1173 elsewhere in the country. The courts of appeals, and even the lower courts of other circuits, may decline to follow the rule we announce — and often do. This ability to develop different interpretations of the law among the circuits is considered a strength of our system. It allows experimentation with different approaches to the same legal problem, so that when the Supreme Court eventually reviews the issue it has the benefit of “percolation” within the lower courts. See Samuel Estreicher & John E. Sexton, A Managerial Theory of the Supreme Court’s Responsibilities: An Empirical Study, 59 N.Y.U. L.Rev. 681, 716 (1984). Indeed, the Supreme Court sometimes chooses not to grant certiorari on an issue, even though it might deserve definitive resolution, so it will have the benefit of a variety of views from the inferior courts before it chooses an approach to a legal problem. See McCray v. New York, 461 U.S. 961, 963, 103 S.Ct. 2438, 77 L.Ed.2d 1322 (1983) (Stevens, J., respecting denial of petitions for writs of certiorari) (“[I]t is a sound exercise of discretion for the Court to allow [other courts] to serve as laboratories in which the issue receives further study before it is addressed by this Court.”).

The various rules pertaining to the development and application of binding authority do not reflect the developments of the English common law. They reflect, rather, the organization and structure of the federal courts and certain policy judgments about the effective administration of justice. See Payne v. Tennessee, 501 U.S. 808, 828, 111 S.Ct. 2597, 115 L.Ed.2d 720 (1991) (stare decisis is a “principle of policy,” and “not an inexorable command”); see, e.g., Textile Mills Secs. Corp. v. Comm’r, 314 U.S. 326, 334-35, 62 S.Ct. 272, 86 L.Ed. 249 (1941) (en banc rehearing “makes for more effective judicial administration”). Circuit boundaries are set by statute and can be changed by statute. When that happens, and a new circuit is created, it starts without any circuit law and must make an affirmative decision whether to create its circuit law from scratch or to adopt the law of another circuit — generally the circuit from which it was carved — as its own. Compare Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981) (en banc) (adopting as binding precedent all decisions issued by the former Fifth Circuit before its split into the Fifth and Eleventh Circuits), and South Corp. v. United States, 690 F.2d 1368, 1370-71 (Fed.Cir.1982) (en banc) (adopting as binding precedent all decisions of the Federal Circuit’s predecessor courts, the Court of Claims and the Court of Customs and Patent Appeals), with Estate of McMorris v. Comm’r, 243 F.3d 1254, 1258 (10th Cir.2001) (“[W]e have never held that the decisions of our predecessor circuit [the former Eighth Circuit] are controlling in this court.”). The decision whether to adopt wholesale the circuit law of another court is a matter of judicial policy, not a constitutional command.

How binding authority is overruled is another question that was resolved by trial and error with due regard to principles of sound judicial administration. Early in the last century, when the courts of appeals first grew beyond three judges, the question arose whether the courts could sit en banc to rehear cases already decided by a three-judge panel. The lower courts disagreed, but in Textile Mills Securities Corporation v. Commissioner, the Supreme Court sustained the authority of the courts of appeals to sit en banc. Textile Mills Secs. Corp. v. Comm’r, 314 U.S. 326, 335, 62 S.Ct. 272, 86 L.Ed. 249 (1943) (“Conflicts within a circuit will be avoided. Finality of decision in the circuit courts of appeal will be promoted. Those considerations are especially important in view of the fact that in our federal judicial system *1174 these courts are the courts of last resort in the run of ordinary cases.”)• En banc rehearing would give all active judges an opportunity to hear a case “[wjhere ... there is a difference in view among the judges upon a question of fundamental importance, and especially in a ease where two of the three judges sitting in a case may have a view contrary to that of the other ... judges of the court.” Comm’r v. Textile Mills Secs. Corp., 117 F.2d 62, 70 (3d Cir.1940), aff'd, 314 U.S. 326, 62 S.Ct. 272, 86 L.Ed. 249 (1943). Congress codified the Textile Mills decision just five years later in 28 U.S.C. § 46(c), leaving the courts of appea