This is an otherwise unremarkable opinion. But it -- like the other Ninth Circuit opinion this morning -- contains a new "Summary" section that looks very much like the "Syllabus" in opinions of the United States Suprme Court. So this may perhaps be a continuing feature.
I initially intended to make no comments about the new section. Personally, I don't ever read syllabi in Supreme Court opinions -- I find them generally unhelpful and duplicative -- so my sense what that these sections aren't really for people like me who actually read the opinions. At the same time, I understand that people don't always get to read an entire opinion, so sometimes summaries are helpful. That's a tiny part of what this blog does, after all. So I certainly understand the sentiment behind including a section that purports to summarize the opinion.
I'll just make two comments. First, if the Ninth Circuit is going to do something like this -- and I have a vague recollection of something like this being a part of slip opinions when I was clerking -- then it should probably include a footnote of the sort that the Supreme Court drops that makes clear that the sumamry isn't part of the opinion and can't be relied upon or cited. I've seen briefs and student papers that cite West headnotes (sadly). This looks even more official. Shouldn't be cited or relied upon, and no harm in reminding everyone of that.
Second, the person(s) responsible need to do their absolute best in the summaries. Most of the time the summary is essentially lifting sentences from the opinion, which is fine (though, again, the value of doing so does not seem especially high to me). But other times portions of the summaries just seem weird. To take but one example, this one ends by saying "The judgment of the district court had to be affirmed." That's just a weird way of saying it. Plus, it's not even really what the opinion said. Judge Callahan just said she was affirming. Not that she "had" to affirm, or did so reluctantly. Just affirmed.
Ditto for some of the "headnote" markings that are part of the summary. For example: "[3] Several cases indicate that a party may not proceed as an aggrieved party under the statute until a final decision has been issued following a due process hearing. [4] The Supreme Court has also used language that suggests that a party in an IDEA case must wait for the final decision following the due process hearing before filing suit in district court." These don't seem like separate headnotes to me; the court's just citing and discussing cases for an underlying proposition. Looks weird.
Admittedly, lots of this might best be viewed as a matter of personal style and taste. Which is why I initially thought I'd refrain from saying anything. Plus, I'm extremely confident that the people who are doing this are doing their absolute best. (Though that rarely stops me from making constructive, or sometimes even not so constructive, critiques.)
But if I'm going to have to jump over a dozen or so pages of Ninth Circuit opinions every day from now on, I figured I should at least say a brief word about the appearance of the summaries on the web versions of the opinions. Then I can be silent for the duration.
Which is my plan.
