Tom Caso has this post at The Opening Brief regarding a Ninth Circuit case last week in which Judge Kleinfeld laments his inability to follow his intuition and hold in favor of the government in an environmental case because of the government’s inability to actually support its case from the record.  Its hard to tell from Judge Kleinfeld’s comments whether the government was hamstrung by its failure to preserve an adequate record or it merely failed to direct the court to those portions of the record that supported its position.

Either way, it’s an embarrassment to have this type of deficiency pointed out by the court, and Tom uses the case to remind us of the importance of making the record.

And Professor Martin at California Appellate Report uses the occasion to provide one of his patented rewrites to show what Judge Kleinfeld was really thinking.