If an opinion sits proudly on the library shelf but grows forgotten with the passage of time, does its holding still have any force? In Mitschke v. Borromeo, the Texas Supreme Court recently exerted considerable effort reaffirming the common law’s “commitment to precedent.” The court did so in the context of concluding that the intermediate appellate courts should not be free to wobble back and forth between inconsistent pronouncements by different panels.

Mitschke rightly explained that such departures from stare decisis often occur because the lawyers failed to point out the key precedent: “Most such ‘violations’ are presumably inadvertent, as when parties fail to identify binding precedents. Despite lawyers’ and judges’ best efforts, deviations of that sort are inevitable, especially in busy and large appellate courts.” Regardless of the reason for the departure, however, the earlier decision ought to control: “If last-in-time decisions trumped earlier decisions, the public writ large would unfairly bear the consequences of departures from stare decisis.”

What if this kind of departure takes place in a court of last resort? Should the earlier decision still control? These questions deserve a look because just such a departure seems to have taken place with the measure of damages for fraudulent inducement. Lawyers have not done as good of a job as they should have in letting courts know what precedent says about the measure, so this Article hopes to fill a bit of the gap. The measure of damages for a common-law tort may sound like something old and stable, but lawyers sometimes forget a precedent or leave that precedent aside because they feel that they can win by focusing on other points.

Read the entire article here.Subtitle How Later-In-Time DTPA Decisions Led Courts To Forget The First-In-Time Measure Of Damages For FraudPublication Baylor Law ReviewStyles for factoids section with_backgroundStyles for factoids section no_backgroundAttorneys a:1:{i:0;s:3:”980″;}Practice Areas a:1:{i:0;s:2:”41″;}Case studies a:1:{i:0;s:4:”7874″;}Related news a:2:{i:0;s:4:”7791″;i:1;s:4:”7991″;}keyword news The Ghost of Texas Supreme Court Fraud JurisprudenceIf an opinion sits proudly on the library shelf but grows forgotten with the passage of time, does its holding still have any force? In Mitschke v. Borromeo, the Texas Supreme Court recently exerted considerable effort reaffirming the common law’s “commitment to precedent.” The court did so in the context of concluding that the intermediate appellate courts should not be free to wobble back and forth between inconsistent pronouncements by different panels.

Mitschke rightly explained that such departures from stare decisis often occur because the lawyers failed to point out the key precedent: “Most such ‘violations’ are presumably inadvertent, as when parties fail to identify binding precedents. Despite lawyers’ and judges’ best efforts, deviations of that sort are inevitable, especially in busy and large appellate courts.” Regardless of the reason for the departure, however, the earlier decision ought to control: “If last-in-time decisions trumped earlier decisions, the public writ large would unfairly bear the consequences of departures from stare decisis.”

What if this kind of departure takes place in a court of last resort? Should the earlier decision still control? These questions deserve a look because just such a departure seems to have taken place with the measure of damages for fraudulent inducement. Lawyers have not done as good of a job as they should have in letting courts know what precedent says about the measure, so this Article hopes to fill a bit of the gap. The measure of damages for a common-law tort may sound like something old and stable, but lawyers sometimes forget a precedent or leave that precedent aside because they feel that they can win by focusing on other points.

Read the entire article here.How Later-In-Time DTPA Decisions Led Courts To Forget The First-In-Time Measure Of Damages For Fraud

Baylor Law Review

David M. Gunn, Appellate, Texas Supreme Court Removes Jurisdictional Loophole and Clarifies that Property Owner on the Houston Ship Channel has the Right to Appeal, Subtitle How Later-In-Time DTPA Decisions Led Courts To Forget The First-In-Time Measure Of Damages For Fraud