Chief Judge Kozinski says that this en banc opinion -- which has six different authors articulating six different views -- fails the en banc court's duty "to bring clarity to our laws." He says: "By the time lawyers in this circuit get through reading all our opinions, they'll be thoroughly confused."
I can help.
Judge Bybee's opinion is joined by a majority of the judges on the court. Right or wrong, it's now the law. The result of a 6-1-1-1-1-1 decision is no more "confus[ing]" to lawyers than the result of a 6-5 opinion. Guess which opinion matter? The one with the six votes. The others just speak to what the law arguably should be, not what it is. The law's no more confusing in that case than it is when the en banc court votes 11-0 but there are five law review opinions criticizing the result. Interesting, to be sure. Fraught with competing perspectives, no doubt. But hardly "confusing" to anyone who can count to six.
So I think that Judge Kozinski's critique is inapt. As, by the way, is his (typically creative) manner of demoninating his concurring opinion as a new-fangled "Disagreeing With Everyone" rather than what it actually is: a straightforward concurrence. They're both articulted in classic Kozinski fashion.
But, upon closer examination, neither one of these statements is really accurate.
Or at least I can help.
