U.S. v. Heredia (9th Cir. - Oct. 24, 2005)

Judge Kozinski's dissents often crush the majority opnion. He's so smart, his writing is so incredibly good, and his analytical attacks are so concise and pointed that you often come away from reading his dissent with the feeling that not only is he right, but that his analysis also totally dominates the majority.

But not this time. Here, Judge Kozinski dissents to an opinion written by Judge Bybee. But, this time, Judge Bybee's opinion is both more persuasive and better written and then Judge Kozinski's dissent. Judge Bybee essentially out Kozinski's Kozinski in this one.

So this one is definitely worth a read. Sure, Judge Kozinski's dissent is well-written, and in his usual colloquial (and easy to read) style. And, as usual, he doesn't shy away from directly attacking the majority opinion. But, this time, Judge Bybee's opinion is even better, and does the same things that the dissent does, but does them more cogently and more persuasively. It's really quite a good opinion, and all the better for how it directly and powerfully responds to the dissent.

So an impressive performance by Judge Bybee. And, by the way, a strikingly smart panel: Judges Bybee, Willie Fletcher, and Kozinski. Thar's some darn sharp tools in that shed.

P.S. - Yes, yes. I know. On occasion, I'm sure I sound like a hack. Here I am saying how impressive Judge Bybee is. Just as I did here and here. And, yes, maybe my compliments of Judge Kozinski (see, e.g., here and here) are a similarly well-worn refrain as well. But the truth's the truth. Plus, it's not that I like (or agree with) everything these two conservative jurists do; for example, here. I merely call them as I see them.

Louisiana Pacific v. Lester Bldg. Systems (9th Cir. - Oct. 24, 2005)

Sometimes you gotta realize when things are futile. This is a particularly appropriate message of the day in light of contemporary events in the legal world. But I mention that fact not to refer to a particular Supreme Court nominee, but rather in a much more pedestrian context. The reality is this: No matter what I say, I'm pretty darn sure I won't be able to persuade many people to read a 70-page opinion on the intricacies of the Anti-Injunction Act. It could be the most sexy Anti-Injunction Act case in the history of the universe. Still, I know the reality. It just ain't gonna happen.

But I'll nonetheless mention that this case is worth reading. Really. Okay, maybe only for people who really, really, really, really, really like fed courts issues. Really. But for that select group -- yes, probably the same people who once dressed up as their favorite Dungeons and Dragons character -- it's a case that's definitely worth the investment. For everyone else: Well, it's true for them as well, but I ain't gonna beat my head against a wall. Much. Sure, they should maybe read it too. But good luck with that. Easier to sell snowballs to Eskimos, as my father would sometimes say. (He had a lot of other euphemisms as well. I feel bad for him, however, as he can no longer use the "Is the Pope Polish?" line. Ah, the death of a classic.)

Here's my one-paragraph summary of the case to wet your interest. It's a case with both an opinion (by Judge Clifton), a concurrence (by Judge Silverman), and a dissent (by Judge Reinhardt). So no one fully agrees with anyone else. The dispute matters: It both revolves around a $509 million class action settlement as well as the propriety of a subsequent $29.6 million jury verdict against Louisiana Pacific. And I thought as I began to read Judge Clifton's opinion that I was totally going to agree with him and disagree with my former boss (in dissent), but it turned out, by the end, that the contrary was true. Plus there are super-long footnotes in the opinion (oh boy!) and a ton of direct interchange between the majority and dissent. Finally, the concurrence by Judge Silverman contains the following bon mot that humorously summarizes his main point with a thinly-veiled reference to Las Vegas' contemporary advertising slogan: "What happens in state court stays in state court." Funny!

That's the best I can do to convince you that it's a page turner. It was for me. But the day I claim that I'm representative of any class is the day I formally institutionalize myself. Enjoy the opinion if you so choose!

Belmontes v. Stokes (9th Cir. - Oct. 24, 2005)

When I first looked at who joined the dissent from the failure to take this case en banc, I thought it contained all of the usual conservative suspects. It's another state habeas case in which the panel grants relief and the right wing attempts (but fails) to take the matter en banc. In that regard, this case is very similar to Musladin v. LaMarque, which came down the previous working day (and which I discuss here and here) and in which the exact same thing transpired.

But first glances can sometimes be deceiving. Sure, it's mostly the same group, as Callahan, O'Scannlain, Kleinfeld, Tallman, Bybee, and Bea each join both dissents. But, somewhat surprisingly, the dissent in this case includes Judge Gould, who didn't join the dissent from the refusal to rehear Musladin. Weird, since my sense is that Musladin is the somewhat weaker case on the merits. Perhaps Judge Gould was spooked by the fact that the Supreme Court previously GVR'd this case, which shouldn't matter, but which sometimes creates a perception of future reversal. (Shameless self-promotion: Cf. Shaun P. Martin, Gaming the GVR, 36 Ariz. St. L.J. 551 (2004)). Perhaps even more significantly, guess who joined the dissent in Musladin but who doesn't join the dissent in this one? Judge Kozinski.

I found that fact particularly interesting because (1) I think that it reaffirms my belief (which I've previously discussed) that Alex is not a knee-jerk jurist, and (2) in light of the fact that his stock as a potential Supreme Court nominee -- on the assumption that Meirs gets tubed -- is (at least according to some) on the rise, and is (again, according to some) much higher than the super-long-shot status he previously held. Now, even the little birdies who're chirping on the subject basically put him at 25-1 or so. Still, that's a fair piece higher than many, and much better odds than he previously had. So interesting to see his take on this one, as well as to ponder how his reactions to cases like these would play with the public in the event he were nominated to the Court.

Musladin v. LaMarque (9th Cir. - Oct. 21, 2005)

Am I always perfectly right? No. I'm sure that this admission rocks the universe. Those with any contact with me assuredly have come to expect perfection. But, sadly, it's an unrealistic expectation. I am a mere human. Fragile. Imperfect. Ocassionally wrong.

Why make this concession now? Well, quite frankly, because it's not looking particularly great for our hero. Back in April, I posted that this opinion -- written by my respected prior employer, Judge Reinhardt -- was one that "may be one of those classic Ninth Circuit cases that just doesn't have staying power." And I said, in my classicly cocky know-it-all fashion, that people should "read this one while you can" because it was exactly the type of case that the Supreme Court and the en banc court like to reverse, and hence it was "far from clear that it'll still be precedent a couple of years from now."

Bold words. Here's the thing, though. The Ninth Circuit didn't take it en banc. Sure, the conservatives tried, and called for a vote. But didn't succeed. Yeah, they got Judge Reinhardt to slightly modify his opinion, and he issued a new one that appears here. And yeah, they got several votes to take the case en banc, and seven of the judges expressly joined a lengthy dissent from the denial. But didn't have enough votes. As a result, the basic holding of the panel opinion persists. Notwithstanding my somewhat contrary prediction.

Okay. So I'm apparently not the Nostradamus of the legal profession. Sue me. (Don't really.) Plus, the Supreme Court still has the opportunity to save me from my shame and to step in -- as I somewhat predicted -- and reverse this bad boy. We'll see if they do. But, if not, I hereby apologize to my former employer. If I was wrong and you were right, I'm sorry that I doubted you. My bad.

P.S. - Sure, I've got my excuses. After all, I wrote my potentially erroneous post on April 15 -- the day on which I filed my tax return, so my mind was undoubted both jumbled (thank you, tax code) and elsewhere. But I'm forced to admit -- to my undying shame -- that the real culprit is that, until six days ago, I hadn't made a recent count of precisely which judges remain to vote on en banc petitions. I should have been smarter and have relied less on my failing (and imperfect) memory. I needed to be less old. If I had been, I perhaps could have seen this vote coming. Damn. I'm about to turn 40. I hate being reminded how old that is. Oh well.

Parents Involved in Community Schools v. Seattle School Dist. No. 1 (9th Cir. - Oct. 20, 2005)

Lest one think that the problem of race relations has been solved in America, take a gander at this 137-page en banc decision. The issue is whether the Equal Protection Clause prohibits an integration tiebreaker in Seattle's open choice, noncompetitive public high school assignment plan.

Both the majority and dissent make darn good points. It's a tough issue. The nature of the dispute assures it. But one should definitely have an opinion.

It's a good review of the existing contours of the Supreme Court's race-based Equal Protection jurisprudence. And a fine example of just how difficult it is to resolve the disputes arising thereunder.

Plumlee v. Del Papa (9th Cir. - Oct. 18, 2005)

My relatively firm belief -- although I admit that it's perhaps idiosyncratic -- is that one should tailor one's dissent at least a little bit to the identity of your colleagues in the majority. For example, if you believe (for whatever reason) that the people who outvoted you are cold-hearted, manipulative bastards who know that what they're doing is wrong but are drunk with the knowledge that they can do it anyway, your dissent can (and maybe even should) be totally mean. And let me assure you, by the way, that this happens; indeed, that there are some judges -- I'll omit the names, but they ain't hard to guess -- who are infamous in this regard. By contrast, when you think your colleagues simply get it wrong, but are trying their best, you're usually pretty nice, even though you disagree (and sometimes vehemently disagree) with them. Now, the term "respectfully" is totally overused (and in, "I respectfully dissent"), and indeed often is used to mean exactly the opposite of respect. But I think you really should be fairly nice when your colleagues are the type of people whom you respect and who are misguided in this particular case notwithstanding their best efforts and their good hearts.

Let me apply this general principle more concretely; for example, in this case. The majority opinion is written by Betty Fletcher. Now, whatever one might think about Judge Fletcher, she's definitely not a jerk, much less a manipulative bastard. Rather, she's assuredly one of the nicest and most reasonable members of the bench, and I think pretty much everyone would agree with that assessment. Can she be wrong? Sure. Can you think her judicial philosophy is misguided? Of course. But she's undeniably doing what she thinks is right, and her thoughts in that regard are sufficiently straightforward and right down the middle that you just can't think of her in really derogatory terms. You just can't. And everybody knows that.

Which is why Judge Bea's dissent here -- and Judge Fletcher's reaction to it -- are pretty unusual. You often see marginally testy exchanges between opinions, or at least it's hardly a surprise when you do. But I don't ever recall seeing someone get into it like this with Judge Fletcher, of all people. Nor do I recall a previous opinion of hers that was so pointedly responsive to the dissent. This is a much, much, much more personal exchange that I've heretofore seen from Judge Fletcher. Which says something, I think.

The entire dialogue between Judge Fletcher and Judge Bea takes up 65 whole pages, and you really have to read the whole thing to get a flavor for what's going on. Plus, even if you do, there's a fair amount of superficial courtesy expressed by both sides, so it's easy to overlook the overall tenor. But if you're used to reading the typical opinion by Judge Fletcher, you definitely notice the difference here. Take a look at footnote 4, for a very slight example, where Judge Fletcher says that Judge Bea "accuses us of taking these responses out of context." Or, more significantly, on page 14247, where she includes the following -- somewhat striking (especially for her) -- paragraph in the text: "Before concluding, we feel that we must briefly respond to the dissent's accusations that we are distorting the facts, introducing a subjective and 'rudderless' standard into the law, and inviting 'volumes of litigation' by encouraging defendants to concoct conspiracy theories about their defense attorneys." Yikes. One gets a keen sense that Judge Fletcher is not typically confronted with such bold critiques, and also doesn't particularly like it. And, after all, who would? And, thereafter, when she responds to these objections by arguing that Judge Bea attacks a "straw man", that his accusations "rel[y] on a highly selective reading of our opinion," and that he has "ignore[d]" and "mischaracterize[d] the opinon, she is using language that is much, much, much harsher than what I'm used to hearing from her.

Now, on Judge Bea's end, as you can probably tell from Judge Fletcher's response, he's hardly pulling punches here. Sure, he ends his dissent with a superficial paean to his colleagues -- one that could actually be read as a backhanded slam anyway -- but that's only after about three dozen really harsh comments. Which, again, we are completely used to seeing in response to, say, a Judge Reinhardt or Judge O'Scannlain opinion. But Betty Fletcher?! Come on.

The exchange you see her is not something you're going to see every day. Or even every year. Or even every decade. So if only for that reason -- as well as, perhaps, the importance of the underlying holding -- it may well be worth slogging through this very long and detailed opinion. I was glad I did.

Summerlin v. Schriro (9th Cir. - Oct. 17, 2005)

This one's actually a bit of a surprise to me. Yeah, I know the 9th Circuit often gets slapped for being liberal, but it's a reputation that's actually way overplayed. But then a case like this comes along. Which is (1) a death penalty case, (2) previously taken en banc in which the 9th Circuit reversed the death penalty, (3) to which the Supreme Court responded by granting certiorari and reversing (and remanding), and (4) as to which the en banc court (on remand) now again reverses the death penalty, this time on a different issue.

Pretty bold. Not necessarily wrong, of course. But reasonably bold. Especially since the murder in question occurred over 24 years ago and the petitioner has been on death row for over two decades now. Not exactly the type of person for whom the Supreme Court is typically expected to have a lot of sympathy. This is also precisely the kind of case that conservatives scream about when they complain about liberal justice. The guy's a murderer and has been sentenced to die. So kill him, already. So sayeth some.

Since this is the anticipated reaction by at least some observers, I was somewhat surprised at not only the result (a reversal), but also the vote. 10-1. Pretty unusual. Especially for a post-remand case such as this, in which you've got to be at least a little bit worried that the Supremes are itching to spank you back down if you again reverse the death sentence on remand.

Admittedly, the en banc court is granted a little freedom since the decision in the Supremes the first time the case went up was 5-4. So it's not like what transpired before was one of those bench-slaps that the Supremes occasionally give the 9th Circuit. Still, you gotta be a little worried, don't ya? At least enough to stop it from being 10-1?

As a result, my initial reaction was that this must be a pretty strong case; one in which the death penalty really was imposed improperly. Since that's the only way they'd get 10 votes. But then I saw who was on the en banc draw. Wow. Three Carter appointees (Schroeder, Pregerson, and Reinhardt). One Reagan (O'Scannlain). And the entire remainder Clinton. No Bush I. No Bush II. And guess who's the 1 in the 10-1? You got it. Diarmuid. So it lines up exactly as one might expect. It's just that, this time, that means a 10-1.

Which in turn generated several thoughts. First, how often is the en banc court really that politically skewed? Statistically, it's gotta be pretty rare. Second, did this skew in this particular case have anything -- anything at all -- to do with the decision by the 9th Circuit two weeks ago to increase the size of en banc panels to 15 (from 11)? You gotta admit that the timing is, at a minimum, pretty fortuitous. Third, and finally, where the hell did all the hard-core conservatives go? You almost always see a pack -- sometimes a pretty big pack -- of them on the en banc panels, and you definitely see them all the time on three-judge panels. Where are they now?

Their absence from this draw made me go back and look at the composition of the court, which I haven't actually counted for quite a while now. Amongst the actives, one-third are Republican appointees (2 for Regan and Bush I and 4 for Bush II) and two-thirds are Democratic appointees (3 Carters and 13 Clintons). This is a quite a bit more skewed than I would have thought for the relevant years in question. Which in turn made me ponder why that's the case. Did Clinton appoint younger judges? I don't think so. Did the judges appointed by Reagan and Bush I decide to go senior (and hence be ineligible for an en banc draw) faster than their Democratic counterparts? I was interested enough in the latter query to actually start pulling data to try to figure it out. It'll take a while: There are a lot of judges out there. But I'll keep you apprised.

Anyway, a weird one. Interesting. But weird. Not a case where I'd have predicted a 10-1 just looking at the underlying issue and procedural posture.

Membreno v. Gonzales (9th Cir. - Oct. 14, 2005)

Ouch. It's bad enough when your panel opinion gets taken en banc. It's worse when the opinion that they've taken en banc was per curiam, which (as I understand it, anyway) is latin for "This thing is so totally easy that it's not even worth writing about at length, much less telling anyone which set of clerks bothered to puke this thing out." And then there's the ultimate insult. Having your opinion unanimously dismissed by the en banc court, with not even your closest crony backing you up.

But that's precisely what happens here. To Judges Hall, Brunetti, and Graber. They're each on the panel that, back in October of 2004, decides that an immigration petitioner's appeal is so easy that they can dismiss it on the merits in a per curiam opinion and without oral argument. Oopsies. Apparently the rest of the court isn't equally convinced that the panel correctly resolved the case. So they take the case en banc. And decide -- in a unanimous opinion -- that the panel shouldn't have decided the case on the merits, and instead get rid of the case on procedural grounds.

I can't recall the last time I've read a case in which the en banc court was unanimous in deciding that the panel had gotten it wrong. I am certain that I can't remember the last time an en banc court decided an immigration case that garnered the uniform assent of such disparate jurists as (as here) Pregerson, Reinhardt, Kleinfeld, Tallman, Bybee and Bea. When all those dudes -- and, notice, that they're indeed all dudes -- are arrayed in a uniform line against you, you've probably made a mistake. As indeed the panel did here. And got smacked down -- albeit very nicely, and sub silentio -- for it.

Admittedly, it could have been worse. At least luck spared Judges Hall, Brunetti, and Graber from being chosen for the en banc panel, and hence were spared the indignity of either (1) trying to lamely support their panel opinion, or (2) having to vote against the result they previously reached. It's unclear which of these two options would have been more embarrassing. Thank goodness for small favors, eh?

Harris v. Bankers Life & Cas. Co. (9th Cir. - Oct. 6, 2005)

Here's another opinion for those desperately interested in civil procedure. (And aren't we all?) When does the 30-day period for removal start to run if the complaint itself doesn't clearly reveal the basis for removal; e.g., if it doesn't contain allegations about the residence of the parties? Judge McKeown holds that it essentially doesn't: rather, that this 30-day period starts only once (and if) the face of the complaint itself affirmatively reveals the facts necessary for removal.

I'm not going to complain much about the result in this case, which I think Judge McKeown gets right. It is a classic case where removal was indeed likely proper. Judge McKeown also does a good job of providing some reasonably persuasive justifications for her adopted rule.

But easy cases sometimes make bad law, and I think that this somewhat happens here. Judge McKeown's rule properly resolves the case before her, and this case also exemplifies the problems of any rule that would start the 30-day clock based upon constructive knowledge of various jurisdictional facts. But, in my mind, Judge McKeown has to -- or at least should -- do a little more than that. Because her rule has definite downsides of its own, and rather than address them, she instead ignores them. Which makes me wonder whether she didn't even consider them, doesn't have a response, or thinks that they involve a different rule.

For example, Judge McKeown holds that the 30-day period only begins to run when the complaint itself contains the jurisdictional facts; further, that the defendant's "knowledge, constructive or otherwise," of the possibility of removal doesn't start the clock. Really? So let's say I (a resident of California) sue IBM (a Delaware corporation with its PPB in New York) in state court, but my complaint only alleges that I'm a California resident and doesn't say anything about IBM's residence. Does IBM's 30-day clock for removal really not start running from the day of service?! After all, my complaint itself doesn't allege the necessary jurisdictional facts. And Judge McKeown has expressly held that the subjective knowledge of IBM -- which surely knows its own residence -- is irrelevant, and has also provided policy reasons (bright line rule, etc.) why that should be the case. So she'd seemingly hold that IBM can remove anytime it wants (within, of course, the year-long deadline) since the 30-day clock didn't start ticking yet. So IBM can remove once it learns who the state court judge will be, once the state court judge has issued a tentative decision on a motion for summary judgment, once various discovery stages are approaching or have transpired, etc. In other words, pursuant to Judge McKeown's rule, IBM can engage in precisely the type of manipulative and abusive removal that the 30-day clock was designed in large part to avoid. Ditto for post-filing and amended complaints that create the possibility of removal; e.g., the 30-day clock starts whenever IBM wants it to start when Shaun initially sues IBM and Sandy (another California resident) and then subsequently dismisses Sandy. The fact that IBM knows that the case is removable immediately upon Sandy's dismissal is irrelevant. It gets to wait and remove whenever it feels like it.

Now, I'm not saying that the rule that Judge McKeown adopts in this regard isn't a possible interpretation of Section 1441. You could adopt such a rule (though I think it'd be a little bit hard to square with the text). But it'd nonetheless be a bad rule. And that's essentially the one that Judge McKeown adopts. At the very least, she needs to articulate why these untoward results of her rule won't occur, won't matter, or are somehow distinguishable. But, in all honesty, without amending her opinion, I don't think she can. Once she holds that the subjective knowledge of the defendant doesn't matter, she's got to bite the bullet on some extremely bad consequences. Sufficiently bad, in my mind, that they clearly outweigh the benefits of her holding, especially since the downsides of her rule will transpire much more often (since they're much more common) than the downsides (e.g., disputes over "what and when defendant knew X") she discusses in her opinion.

I like Judge McKeown. She's smart and fair. But she goes a bit overboard on this one, and lets a bad case make bad law.

Corder v. Corder (Cal. Ct. App. - Sept. 26, 2005)

I usually have a sense about which side is right. Maybe I'm wrong, of course, but I usually at least have an opinion.

Then there are cases like this one. About which I'm conflicted. As to which both sides make some darn good points. And with respect to which I'm forced to say: "Jeeze, I just don't know." Which in turn makes me ponder whether I'm missing something, whether other informed people would feel the same way, or whether it's simply just a darn tough issue. Which obviously happens. And this may be one of those cases in which the proper resolution of the dispute is just very much unclear.

Now, I hesitate to say that, because it might encourage you to actually read the opinion. Because it's a long one. 62 pages. Yikes. That's more than just a little bit of work in order to satisfy one's intellectual curiosity.

But, hey, we're all superstars here, right? We're all legal studs. We can read, comprehend, digest, analyze, and deeply critique 62 pages of prosaic text in, what, five minutes, right? So let's do it! (Okay, maybe not.)

Let me at least pique your interest. Because the basic facts are both brief and somewhat interesting. Sherry Corder meets Raymond Corder in August 1999, he proposes to her four months later, and they marry. Then, as luck would have it, eight months after they get married, Raymond gets whacked in a construction accident. Now, you notice I say "as luck would have it" but don't say whether it's good luck or bad. Because whether it's good or bad depends very much on both your interpretation of the facts as well as whose luck we're talking about. Sure, it's bad luck for Raymond. He's dead. That's rarely, if ever, an undiluted good. But what about the other folks?

Here's the thing about Sherry. Sure, she just lost her husband. Of eight months. But, according to a ton of the evidence, she's about to "lose" him anyway. Because -- and here's the interesting (or at least salacious) part -- she just can't seem to stop hooking. Apparently Raymond thought that marriage would "change" her whoring ways. But it ain't happening. And Raymond isn't happy about it. So Splitsville may be about to gain another resident. He hasn't seen a lawyer yet, but he tells lots of friends that it ain't looking good. That her cheating ways -- although bringing home the bacon (!) -- just ain't what he had in mind when he married his prostitute wife. Ah, the trials and tribulations of middle America.

Recall, though, that Raymond conveniently gets out of this difficult dilemma regarding what to do about his whoring wife by winding up dead. And winding up dead not just in some meaningless way (heart attack, etc.), but rather in a way ("construction accident") that gives rise to a lawsuit. So Sherry -- his surviving spouse -- and Lisa, who's Raymond's surviving adult daughter, sue. And end up with a settlement of $1.1 million. And promptly then fight about the appropriate split. Who should get what share?

Here are the basic arguments, distilled down to their basics (from 62 complicated pages of analysis). Lisa says that she should get the lion's share because Raymond was about to divorce Sherry, and hence Sherry's "loss of support" from Raymond was virtually nothing; e.g., the alimony she'd get for a grand total of eight months of marrige (say, $25,000). But Sherry says that Lisa should get almost nothing because she's an adult daughter who's essentially on her own, and the "loss of support" that one typically gets from the loss of a father by such a person is basically nothing (say, $25,000 as well).

The thing is, in my mind, they're both somewhat right. They both probably should get very little at trial. But they didn't get very little; rather, there's this $1.1 million settlement that needs to be split up. So who should get it? That's a toughie. Plus, there are various potentially dispositive legal arguments as well. Justice Sills argues that the fact that Raymond and Sherry might have been "about" to get divorced should be irrelevant, both because they weren't in fact divorced and because to allow such evidence -- particularly evidence about the reasons why they were allegedly going to get divorced -- would turn "no fault divorce" in California on its head. Plus, Sherry argues that the $1.1 million settlement was a figured almost assuredly reached because the defendant thought that she would receive roughly that amount at trial as "lost support", and even if defendant was wrong (because it didn't know about the potential divorce, inaccurately assessed the law, etc.), she should get most or all of that amount because she (not Lisa) "generated" it, or at least it was "allocated" to her in terms of the defendant's own assessment. But Lisa responds that this would just grant an illegitimate million-dollar windfall to the whoring, about-to-be-ditched-by-her-husband Sherry, and that these sums should actually be recovered by the person (Lisa) who actually both was loved by and lost the continuing companionship of her father, rather than the person (Sherry) who didn't really lose anything she wasn't already going to lose. But Sherry responds that giving Lisa this money would be a windfall to Lisa, since there's no freaking way that any jury would award a million dollars to an independent adult daughter like Lisa who lost her adult parent. And Sherry's got some pretty good evidence (typical Orange County jury verdicts, etc.) to prove it.

So who wins? What do you think? Now, mind you, I've summarized all this stuff very briefly, and think that the issue becomes even harder to resolve once you read the compelling -- and competing -- analysis of both the majority and dissent. The trial court awarded 90% of the $1.1 million to Lisa (the daughter) and 10% to Sherry (the wife). Is that the right call?

The Court of Appeal, in an opinion by Justice Ikola, says "Yes". Whereas Justice Sills dissents and concludes "No". And, again, both articulate great arguments in support of their position. A toughie. Read the opinions (if you dare!) and see if you're as equally conflicted as I am. At the end of the day, I just don't know who's right and who's wrong.

Bona v. Gonzales (9th Cir. - Sept. 30, 2005)

Sometimes -- often -- you don't actually need to read most of the opinion to see where the panel's going. This one is a perfect example. Just read the first three pages. Oh my. It's an immigration case in which the INS is trying to remove an alien. And the court's so, so, so going to let her stay here.

You can't read the first three pages -- which have utterly nothing to do with the law, and instead recite only the facts -- and not know where the panel's going to come out. And for those who are confident that the INS only moves to deport those people who totally deserve it, indeed take a gander at those facts. It's not pretty.

In Re Complaint of Judicial Misconduct (9th Cir. - Sept. 29, 2005)

This is why I love Judge Kozinski. Just love him. And why you should too. In a platonic, non-sexual way, of course.

When Judge Kozinski goes off on something, he's often right. But even when he's wrong, he almost always writes a great opinion, and one that gets you thinking. And that's definitely the case here. A complaint is filed against a district court judge, and the majority basically decides not to do anything about it. To which Judge Kozinski writes a dissent, which absolutely kicks the crap (pardon my French) out of the panel.

That's not, again, to say that Judge Kozinski is necessarily right on the merits. This case probably involves an issue on which reasonable minds might disagree. Especially since the dispute isn't really law-based, but rather merely concerns what the appropriate penalty (if any) should be for a particular judge who conducted himself in a manner that was (in my mind) clearly wrong. You've got several very nice judges on this panel; indeed, perhaps, in this case, overly nice. So when the majority basically lets the judge off by saying that he's probably "learned his lesson," you can see where they're coming from. So it's not that Judge Kozinski is totally and indisputably right about the merits.

Nonetheless, his opinion crushes the panel's. It's not even close. You've got to read the whole thing to see precisely what I mean. And it's also somewhat weird, because the majority opinion doesn't even seem to take on most of Judge Kozinski's arguments, and instead almost seems to let themselves be crushed. The majority almost seems to say: "Yes, Alex, I know that you're right, and if we were harsher people, yeah, we'd slam this guy pretty hard, but we're just going to be overly nice here, because we just don't have it in us to punish this 80-year old jurist, who's likely to be gone in a very short time anyway. Can we just please let it be?"

Of course, the majority doesn't actually say that, and Judge Kozinski has a pretty persuasive response even if they did. But that's the underlying dispute here, I think.

So anyway, this is exactly why we need people like Alex on the bench. Who are both able and willing to go off on particular issues -- things about which they feel strongly -- even thought (indeed, maybe because) they're going against the tide. My only complaint, quite frankly, about Judge Kozinski's dissent is that even he's a bit too nice, and -- like the majority -- relentlessly refrains from naming the judge at issue. Who's Judge Manuel Real, by the way. Sure, you can find out who it is fairly easily. But still, given what transpired here, there's at least got to be some sort of shame that attaches to his conduct, and for the entire panel to deliberately leave out his Judge Real's name seems utterly lame to me. Judge Real did what he did. If there was nothing wrong about it, then he shouldn't be ashamed to have his name attached to it. And if, by contrast, there was indeed something wrong with it, then the least the panel should do is let the public know. To have the panel instead dance around Judge Real's identity just seems incredibly lame.

For those readers who practice (as I once did), learning that it's Judge Real who performed the acts at issue here will hardly come as a shock. The guy -- with all due respect -- is both a bully and somewhat of a nutjob. And I've got utterly no axe to grind here; I've never had a case before him, nor has he ever done anything to either me or anyone of my acquaintance. But his reputation is well-known and, in my mind, well-deserved. So it came not as all as a shock to me to learn that he, inter alia, was both the type of tyrant and the type of whacko who would perform the activities at issue here.

Anyway, read this thing. Alex: You da man. Don't ever change.

Jibril v. Gonzales (9th Cir. - Sept. 19, 2005)

This is a darn interesting opinion by Judge O'Scannlain. It's powerful, compelling, and darn sophisticated in its approach. I like it.

It's an asylum case, and we all know the background of those. Some Ninth Circuit judges have never met a candidate for asylum they didn't like and want to let in. Others have never met a candidate they didn't hate and want to kick out. Those may be slight exaggerations. But only slight. This is an area in which emotion -- or at least politics -- tends to run fairly deep.

When you read all of these various decisions, you often have a view (as I do) about which end of the spectrum Judge O'Scannlain tends to be near. But what I particularly like about this opinion is that, unlike many asylum opinions, which are relentlessly results-oriented, this one is actually pretty darn fair. Not that you can't tell where Judge O'Scannlain's inclinations lie, because you assuredly can. But I thought that his factual analysis was fairly neutral and principled. And -- and this is the thing I was most surprised about -- it's crystal clear that Judge O'Scannlain here is neutrally applying precedent that he doesn't like and would prefer not to follow, and yet does, in fact, apply. That's darn rare in asylum cases, where you can almost always find precedent that supports the result you want to reach, in large part because the prior authorities are so split and divisive in their approaches, depending on who was on the relevant panel that wrote the opinion.

Now, I'm no dummy. My keen sense is that Judge O'Scannlain is definitely pulling a Marbury here; in other words, that he's granting asylum in this case, even though he doesn't particularly want to, in order to craft a decision that slams the general principles that require this result and hence affect other asylum claims more broadly. Such an approach also saves the opinion -- which slams a variety of prior Ninth Circuit cases -- from potential en banc review, as both sides of the aisle will find something they like in the opinion and neither will be especially interested in using this particular case as the vehicle to reshape circuit precedent.

But, be that as it may -- and perhaps, in part, because of it -- I like the opinion. It's smart. It's principled. It makes a lot of sense. And, in a lot of what he says, I think that Judge O'Scannlain is entirely right.

So good job, Dairmuid. It's an impressive opinion. One that I wouldn't have been nearly as smart enough to write.

DHX, Inc. v. Allianz AGF (9th Cir. - Sept. 19, 2005)

I don't know much in this world. But here's one thing I do know: Don't try to hide things from the Ninth Circuit. Ever. Never ever. As anti-Nike might say, "Just don't do it." Because they get angry. Very angry. Which ain't good for you. Trust me.

Want to see an angry judge? Take a look at Judge Beezer's concurrence in this one. He's an angry man. Polite, restrained (to a degree), and analytical. But angry.

Why's he angry? Because the parties here settled the case (and hence the appeal), but tried to let the Ninth Circuit know as little as possible about this settlement in the hopes that the court would vacate the adverse decision of the district court below. That way it couldn't be used as estoppel, precedent, or anything else. The trick was to try to keep the appeal "alive" (for both Article III and prudential purposes) by having one side -- the one that wanted to vacate the judgment -- pay the other side's attorneys' fees to show up at oral argument and make it look like there was a live controversy, and hopefully doing this all without getting sanctioned for hiding the fact that the parties had settled.

And it worked. To a degree, anyway. No one got sanctioned. And the majority didn't grant the vacatur itself, but did remand to the district court to decide whether or not it felt like vacating the judgment. But don't think that the parties get off without taking some bigtime shots. From Judge Beezer, who isn't at all happy with what's been going on here.

Hence his concurrence. Which I view as relentlessly seething, even though it's simultaneously restrained. I have the keen sense that this is an angry, angry dude. And, quite frankly, for not insubstantial reasons. And an angry judge can do a lot of things to you, even if he's restrained enough to keep most of his comments out of the realm of personal attacks and instead limited to the doctrine. All of which Judge Beezer does. Which is why the panel, for example, ordered the parties to produce the entire settlement agreement to the court, and Judge Beezer -- for the benefit of the world -- elects to attach a copy to his concurrence. Which I'm sure the party that wanted the decision vacated (and paid all this money in order to make it happen) was really happy about. Not. And makes some not-so-subtle slams on the terms of this agreement and counsel for the parties, as well as including broad portions of the transcript of the oral argument in which counsel is put in the quite uncomfortable -- dare I say, somewhat squirming -- position of having to explain to a not-so-friendly bench what exactly has transpired here. Again, I thought that, in the scheme of things, Judge Beezer's opinion was fairly moderate, and he also made a very coherent (and good) doctrinal Article III point. But you could still see the emotional undercurrent. Which, I'm sure, also affects his substantive analysis: You wouldn't be fully human if it didn't, at least a tiny, tiny bit.

So a neat opinion to read. In the end, the majority decides to remand the case back down to the district court to decide whether it feels like vacating the case itself. But, if I were the parties, I wouldn't put much hope in these district court proceedings. Not only because a district court hardly has much of an incentive to vacate its own decision, which I'm sure it's convinced is correct. But also because both the tone and content of Judge Beezer's concurrence also serves to give the district court a lot of reasons to deny such a request on its merits.

Who were the attorneys involved, you ask? David Woolley was the counsel for DHX, and was the attorney who was being paid by the other side to show up for oral argument. (One of the very few lawyers who I've seen who has his undergraduate degree from Oxford, I might add.) Geoffrey Robb was the counsel for Allianz, the party who wanted the decision vacated and who paid the other side to try to help make it happen. (On his end, he's an East Asian Studies and History major from Wesleyan, another somewhat non-traditional route to becoming a California attorney.)

Villacreses v. Molinari (Cal. Ct. App. - Sept. 26, 2005)

Hmmm. I don't know about this one. And it's an important holding. Not particularly for the doctrine that it espouses or the rules that it applies. But rather because of its practical consequences.

The basic scoop here is that Justice Bedsworth holds that the arbitration clause at issue in this contract doesn't really compel arbitration because the text of that clause doesn't actually say that the parties are required to arbitrate, and instead merely recites the disclosures (in all caps) that are required by CCP 1298 whenever the parties are agreeing to an arbitration clause. In other words, the parties only agreed to the disclosures required for arbitration, but never actually agreed to arbitration itself. At least according to Justice Bedsworth and the rest of the panel.

That may sound just like a hypertechnical dissertation on the particular contract here. But it's actually a really important holding. Because the form real estate contract at issue here is, from what I can tell, the exact same as the form contracts signed in a plethora of other residential real estate deals, and also contains a contractual clause that is identical to that in a number of other contracts as well. In other words, if this contract doesn't effectively compel arbitration, then tons of other contracts -- including contracts that pretty much everyone thinks contain ironclad arbitration provisions -- don't compel arbitration either. Lots. Lots. Lots. Indeed, I bet I could find a dozen arbitration cases in which arbitration was previously compelled based upon language identical to that here and in which the parties admitted that arbitration was required. (Sadly, however, I've got a brief in the Court of Appeal due on Friday that totally requires my current attention, so I'll not be able to take myself up on this bet. Damn work. Always getting in the way.)

So not only is the holding important, but I'm also not sure that it's right. Principally because I have no doubt -- no doubt whatsoever -- that the parties mutually intended this clause to compel arbitration. That when they initialed the provision, they thought that their initials required them to arbitrate. Which is a pretty telling (and important) point about the meaning of this provision. It takes a damn sophisticated lawyer to articulate -- as Justice Bedsworth does -- a reason why the textual provision doesn't actually appear to affirmatively compel arbitration. Indeed, Justice Bedsworth implicitly recognizes this fact -- alongside a backhanded (but fun) swipe at Clinton -- when he notes that the reason the clause doesn't itself facially compel arbitration is because the only operative ("affirmative") portion only says that "BY INITIALING IN THE SPACE BELOW, YOU ARE AGREEING TO HAVE NEUTRAL ARBITRATION OF ALL DISPUTES TO WHICH IT APPLIES AND YOU ARE GIVING UP ANY RIGHTS YOU MIGHT POSSESS TO HAVE THE DISPUTED LITIGATED IN A COURT OR IN A JURY TRIAL." Sounds like an arbitration provision, right? But Justice Bedsworth notes that the word "IT" isn't defined, so who knows what "it" means? And since this clause only requires the parties to arbitrate disputes "to which it applies", and since the term "it" isn't defined, there's no effective arbitration clause. See?

Okay, that's a pretty good legal argument. But I'm quite sure it wasn't the intent of the parties. So what do you do? Obviously, in the end, the result will be a fight between those who would stick (potentially woodenly) to the express text of a contract and those who would interpret this contract more flexibly to effectuate what I think was the clear intent of the parties. Justice Bedsworth doesn't get into this fight, but instead merely takes as a given that if the text doesn't expressly say X, then X isn't required. To me, at least as applied here, that's a result that's far from self-evident.

Even though this is a very narrow holding, I wouldn't be surprised to see it reviewed and/or depublished by the California Supreme Court. Admittedly, I also wouldn't be surprised if they left it alone, especially since it appears (at least at first glance) to be such a narrow and contract-specific holding. But I think that the import of this case is actually far more significant than might first appear.