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The U.S. Fifth Circuit’s “Rule of Orderliness”

Two weeks ago, the U.S. Fifth Circuit issued an interesting decision about the court’s “rule of orderliness,” which is another name for law of the circuit: Douglas v. Nippon Yusen Kabushiki Kaisha, No. 20-30382 (5th Cir. Apr. 30, 2021). The issue was one for civil-procedure fans: the proper framework for analyzing personal jurisdiction under the Due Process clause of the Fifth (as opposed to Fourteenth) Amendment. Long story short: the panel agreed that the plaintiffs’ argument, but reluctantly followed circuit precedent, which led to a contrary result. In a concurring opinion, Judge Elrod (joined by Judge Willett) suggested that "[t]his case presents a good vehicle for our en banc court to correct our course ....”

For lawyers practicing in the Fifth Circuit, this case is a good lesson on how binding circuit precedent is in the Fifth Circuit. If you’re looking to overrule circuit precedent, you might save time by move for en banc hearing in the first instance under Fed. R. Civ. P. 35.

Hat tip to my colleague Martin Stern for spotting this case.


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