Imagine you've got a case that's pending before the en banc court in which you've got very little to gain even if you win. Say, for example, it's a U.S. immigration case, bu the client has already moved to Canada, where he prefers to stay anyway. So there's no monster upside even if you win. Moreover, during the oral argument before the en banc court, you get the very -- very -- keen sense that you're going to lose anyway. What would you do?
Why not just have the client withdraw his underlying petition? That way the case is moot and you don't get a bad precedent from the Ninth Circuit. Sure, it doesn't help you. But it might help others. And you don't care much anyway, since you're in Canada.
That's exactly what happens here.
The Ninth Circuit allows the petition to be withdrawn, and disposes of the case. But Judge Kozinski (joined by Judges Kleinfeld, Clifton, and Callahan) dissents from the dismissal of the appeal, and makes some very cogent points. Underlying all of which, of course, is Judge Kozinski's basic emotional point: "Hey, I crushed you at oral argument, and my side was totally going to win. No fair calling off the game!!"
I'm positive that the withdrawal of the petition was a smart strategic call. I'm also positive that it results -- and was designed to result -- in precisely the type of manipulation identified by Judge Kozinski. But I'm also positive that repeat players do this quite a lot anyway. Moreover, some of Judge Kozinski's concerns are, as I think he realizes, much more theoretical than actually real: for example, his concern for "leaking" of opinions through law clerks and the like isn't something that I really think keeps anyone up at night.
Still, very neat stuff. A dissent worth reading. If only as a how-to guide for manipulating precedent!