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SCOTUS silence on Kansas case doesn’t set precedent, KU Law professor says

A Kansas case regarding silencers that was not taken up by the United States Supreme Court doesn’t mean the issue is dead, just that the overall question may not yet be timely, according to a University of Kansas law professor. The Court has discretion to decide if and when it will hear a case.

“The Court exercises that discretion through its self-made Rule 10,” said Lumen “Lou” Mulligan, the Director of the Shook, Hardy & Bacon Center for Excellence in Advocacy at the University of Kansas. “Rule 10 says, there’s basically two ways that we are going to take cases. The first way and the primary way is there’s a so-called ‘split of authority’ between the lower federal courts of appeals or the different states. There are twelve different regional federal courts of appeals. They often disagree on things. That makes it a ripe question.”

The second way is something of such national importance that the Supreme Court has to weigh in. President Trump’s travel ban is such an example.

“The Court tends to not want to step in early,” said Mulligan. “It prefers to have lots of lower court opinions and commentary on things before it makes a final decision. That’s their general practice.”

Failure to take an individual case does not necessarily mean the Court won’t decide on an overall issue eventually.

“The fact that the Court refused to hear a case has no precedential value,” said Mulligan. “It doesn’t mean anything as to law. It doesn’t mean that they won’t disagree with that issue sometime down the road.”

At this point, there aren’t enough differently decided lower court opinions to make clear that there is enough of a dispute for the Court to use its time on the specifics of the issue.


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