Monday, May 11, 2009

Ileto v. Glock (9th Cir. - May 11, 2009)

It's Monday. Let's play a game.

Go to this opinion. It's about the liability of firearms manufacturers, and is interesting (and important) on the merits. But don't read it yet. And cover up the caption when you boot it up. Turn directly instead to pages 5578-80 of the slip opinion, which is where the majority responds to the dissent. Take a read.

A pretty classic -- tough -- response to a dissent, right? You might well get the following message from reading that portion of the opinion; essentially: "Ah, my pointy-headed liberal friend. Always anti-gun. Always trying to impose liability. Even when the best stuff you can find to support your view are isolated sentences from a concurring opinion by Justice Marshall and a dissent from a denial by White. Not even close. I'm totally right, you're totally wrong, and it shows."

So a classic conservative-liberal dialogue, right?

Well, yes. Sort of. Judge Berzon does author the dissent. But who's in the majority? O'Scannlain? Kleinfeld? Kozinski?

Nope. Judges Graber and Reinhardt. (!)

Can you tell that there's at least a little love there? Sure. If only from the sentence that opens the attack on the dissent, which reads: "We respond briefly to the thoughtful views of our dissenting colleague on the topic of constitutional avoidance." A sentence -- or at least the word "thoughtful" -- that was, I'm confident, added to the draft opinion by Judge Berzon or Reinhardt themselves, and that at least begins the salvo more softly than you might ordinarily see.

But then goes on, as usual, to leave few holds barred.

So a neat lineup to begin the week.