The day this opinion came out in September 2010, I wrote: "Given the significance of the case, as well as the lineup of the panel, I think you'll see this one taken en banc. Which makes sense, and the substantial tension between the majority opinion and prior Ninth Circuit precedent gives additional reason to take the case up."
So who's surprised that the Ninth Circuit indeed takes the case en banc. Surely not me. Nor any of my incredibly informed readers.
My further prognostication was that you'd see a split opinion en banc, and -- depending on result -- maybe even have the Surpeme Court step in.
Stay tuned. We'll see if my crystal ball stays clear or starts to get cloudy.
