The panel's original opinion was filed around a year ago. I thought that some of Judge Gould's opinion was spot on, but had my doubts about other parts.
Defendants file a petition for rehearing, and Judge Graber is drawn to replace Judge Noonan.
Now, Judge Gould files an amended opinion. And the amendments are both substantial and make the opinion far more moderate and persuasive, in my view. Including modifying the test so that the hypotheticals that I discussed in my earlier post now largely come out the right way. (Judge Gould's amended opinion uses a different hypothetical -- marital status -- rather than my "middle name" and "age" hypotheticals, but the point's now the same.)
I think it's a testament to dedication when a panel substantively modifies its opinion. It's rare, but it happens. And when it does, it almost always makes the thing better. Often substantially so.