Monday, October 01, 2007

In Re El Toro Materials Co. (9th Cir. - Oct. 1, 2007)

I love a man who can use both the term "aliquot" as well as the term "goo" in the same opinion. That man, in this case, is Judge Kozinski.

This opinion is also a good example of a policy-oriented decision. Sure, there are citations to cases. But they don't actually mean anything. The decision comes out the way it does because it makes sense. That result is consistent with the text of the statute, to be sure. But there's no need to pound at length upon the alleged "unambigous" nature of the text (which is rarely the case, otherwise there wouldn't be much of a dispute) and repeated claims that, as a result, nothing more need be said. The statute makes sense because it makes sense, and to read it a different way would lead to bad (and unintended) results. Sounds good to me.

P.S. - I was at the oral argument in this case because I was arguing an appeal later that morning. And I can tell you that it was clear to everyone in the room that the case was coming out the way it did. No one on the panel -- and especially Judge Kozinski -- was keeping their view of the case hidden. Or even muted.