Thursday, March 19, 2020

Herrera v. Zumiez, Inc. (9th Cir. - March 19, 2020)

I know there are bigger issues in the world.  Much bigger.  Massively bigger.  But amongst the ways in which the world has changed fairly recently is that, at least as I perceive it, we're starting to get more days like today in the appellate world.  To wit:  One published opinion, total, from the entire California state and federal judiciary.

Which is not massively surprising.  There's a slowdown in most sectors of work (excepting areas like medicine etc.).  So why should the judiciary be any different?

And it's not like today is horrible.  The one published opinion is interesting.  It's a tiny little fight between one judge who wants the opinion -- which involves an unsettled state law issue -- either to be unpublished (and hence nonprecedential) or to have the federal courts certify the question this time and/or the next time it comes up.  With the unspoken but likely true underlying motivation in part that he doesn't like the (left-wing) way the state court has resolved the matter.  Whereas the majority on the panel wants the opinion published, since it comes up a lot, and doesn't feel like it makes sense to certify the matter since you've got a clear answer from the state courts at present so why not resolve the case now.  With the unspoken but likely true underlying motivation in part that they are just fine with the (left-wing) way the state court has resolved the matter.

Now, maybe I'm reading between the lines too much, or feel that judges are often more results-oriented than the normally are.  And, on the merits, the procedural fight about when you should certify and when you shouldn't is something that warms the hearts of every former law student who enjoyed their classes on Civil Procedure and Federal Courts (e.g., me).  Neat academic stuff.

So (1) beggars can't choosers, and (2) today's tithing is actually pretty darn good in any event.

Meanwhile, we'll see what the future holds.  In this milieu as well as many others.