Over at Law.com,appellate practitioner and How Appealing blogger Howard J. Bashman has this piece about the stare decisis effect of federal circuit court decisions predicting state law when intermediate state appellate courts have since reached a different result. As cited in a law review article surveying the circuits’ various approaches to this issue, the Fifth Circuit laid out its rule in FDIC v. Abraham, 137 F.3d 264 (5th Cir. 1998):
We are, of course, a strict stare decisis court. One aspect of that doctrine to which we adhere without exception is the rule that one panel of this court cannot disregard, much less overrule, the decision of a prior panel. Adherence to this rule is no less immutable when the matter determined by the prior panel is the interpretation of state law: Such interpretations are no less binding on subsequent panels than are prior interpretations of federal law. . . .
We conclude then, that when our [Erie Railroad Co. v. Tompkins] analysis of controlling state law is conducted for the purpose of deciding whether to follow or depart from prior precedent of this circuit, and neither a clearly contrary subsequent holding of the highest court of the state nor a subsequent statutory authority, squarely on point, is available for guidance, we should not disregard our own prior precedent on the basis of subsequent intermediate state appellate court precedent unless such precedent comprises unanimous or near-unanimous holdings from several—preferably a majority—of the intermediate appellate courts of the state in question.
Absent definitive statutory or Texas Supreme Court authority, lawyers otherwise constrained by a Fifth Circuit prediction of Texas law should examine whether intervening court of appeals decisions hold differently on the issue at hand. If so, Abraham may create an argument that a Fifth Circuit panel is not bound by the prior Erie prediction and need not wait for an en banc ruling to reach a contrary result.