Tuesday, December 16, 2008

Sarei v. Rio Tinto PLC (9th Cir. - Dec. 16, 2008)

Want to see how fractured an en banc opinion can be? Take a look.

It's a 3-2-2(minus 1)-1-4. What?! You heard me. Three (McKeown, joined by Schroeder and Silverman) write the "plurality" opinion. Two (Bea, joined by Callahan) concur. Four (Reinhardt, joined by Pregerson, Berzon and Rawlinson) dissent. Two more (Ikuta, joined fully -- and yet sort of -- by Kleinfeld) dissent on a different point (subject matter jurisdiction). But that leaves utterly no plurality, so Kleinfeld then writes a concurrence in the result reached by the three (Judge McKeown) so, when joined by the two (Bea and Callahan), there's at least a modicum of direction to the district court.

You gotta love how this one plays out. A variety of opinions. A total "count-the-votes-and-why" kind of case. A neat one.