The Unexplained Concurrence

Here’s an interesting Howard Bashman’s column that explores the phenomenon of third justices who “concur in the result” without further comment on the majority opinion. 

NOTE: Somehow this post got marked “private,” so I’m not sure it ever showed up on the blog before.  But it’s possible it was posted for a while befopre it got marked “private,” in case you’re looking for an explanation for any deja vu you’re experiencing.)

“Restyled” Federal Rules of Civil Procedure Take Effect Today

The new Federal Rules of Civil Procedure go into effect today. Previous posts (here, here and here) have linked to articles about whether the changes, intended merely to “restyle” the rules without substantively changing them, will accomplish that purpose. I guess we’ll find out soon enough if they don’t.

In the meantime, AbsTracked has a post with some useful links regarding the changes, including an advisory committee report and a change comparison chart.

Thanks to Legal Writing Prof Blog for the link.

Appeal from Non-Appealable Order Does not Deprive District Court of Jurisdiction

Nasciemento v. Dummer, case no. 06-35062 (9th Cir. Nov. 21, 2007) presents a host of jurisdictional issues in a concise opinion. I recommend you read the entire opinion and will concentrate on just one of the issues here, since most of the principles in the opinion are well-established.

Nasciemento purported to appeal from a non-appealable order of the Nevada district court that dismissed some, but not all, defendants and transfered the case to the Montana district court (the “transfer order”). After his appeal was dismissed, but nine days before the mandate issued, the Montana district court entered a discovery scheduling order.

When the Montana court refused to extend time for discovery, Nasciemento filed an appeal from that order (the “discovery order”), which is likewise unappealable. A week later, the Montana Court dismissed Nasciemento’s complaint as a sanction for his failure to appear at a pretrial conference and his lack of preparation for trial (the “dismisssal order”).

Nasciemento claimed that the district court lacked jurisdiction to enter the discovery schedule or dismiss his complaint as a sanction during the appeals pending respectively at the time of each order.

The Ninth disagrees. It holds that since it never had jurisdiction over either appeal, the Montana court, as the transferee court, had jurisdiction to take further action in the case.

Litigants would be wise to assume this rule will apply even where the question of jurisdiction over the appeal is a close call or where it is a question of first impression, because the court draws no distinction between the timing of the two district court orders. When the discovery order was entered, the appeal from the transfer order had already been dismissed (though mandate had not yet issued), so the lack of appellate jurisdiction had been definitely established. The dismissal order, however, was entered just a week after Nasciemento filed his notice of appeal from the discovery order, and thus presumably before that appeal was dismissed for lack of jurisdiction.

The timing of the determination of non-appealability would not appear to affect the outcome. But where appellate jurisdiction may be an open question, might more cautious district judges defer exercising jurisdiction until the issue of appealability is resolved?

Appeal after Remand to State Court: Was Removal Reasonable?

The Ninth Circuit reminds us in Gardner v. MEGA Life & Health Ins. Co., case no. 06-55045 (9th Cir. Nov. 19, 2007), that even though no appeal lies from an order remanding a removed action to state court, the removing defendant may appeal an order to pay costs and fees imposed in connection with the remand under 28 U.S.C. § 1447(c). Here, it pays off.

MEGA was ordered to pay costs and fees when the action was remanded. It claimed the only non-diverse defendant, an individual, had been fraudulently joined for the purpose of defeating diversity jurisdiction because the statute of limitations had run as to that defendant.

Applying the rule that fees and costs should ordinarily not be awarded where the removing defendant had an objectively reasonable basis for removing, the Ninth Circuit reverses the award of fees and costs. Interestingly, it finds that MEGA had a reasonable basis for removal purely on its own analysis of whether the claim against the non-diverse defendant was barred under California law and without considering one of the reasons MEGA cited for the reasonableness of removal — that on remand, the California court sustained MEGA’s demurrer.

That makes sense, in a way, since reasonableness should be measured as of the time of removal. On the other hand, it seems like the state court dismissal is pretty solid evidence of the objective reasonableness of MEGA’s fraudulent joinder contention.

Kozinski Doesn’t Want Hard Work Wasted — Dissents from Order Dismissing Petition for Rehearing

In Suntharalinkam v. Keisler, case no. 04-70258 (9th Cir. Oct. 18, 2007), the Ninth dismisses a petition for rehearing en banc in an immigration case on the motion of the petitioner, whose counsel requested dismissal after being questioned at oral argument regarding the petitioner’s relocation to Canada and seeking of asylum there. Judge Kozinski will have none of it. In a dissent joined by three other judges, he argues against the ability of the petitioner to waste all the hard work of the court:

My colleagues dismiss the petition for review based on a nine-line motion, filed almost a month after this case was argued and submitted, which says nothing more than that petitioner has suddenly lost interest in the case. Granting the motion in such circumstances casts aside the time and effort of the 15-judge en banc panel, as well as the time and effort of the full court in considering whether to take the case en banc in the first place. It also threatens the integrity of our processes by inviting manipulation by parties unhappy with the questions at oral argument and fearful of the result they believe the court is going to reach. Worse still, by allowing counsel to dismiss the petition without requiring confirmation from the client that he wishes to abandon the petition for review, we put petitioner’s rights in jeopardy and leave the door open to future litigation as to whether counsel’s representations can bind the client.

I’ve always detected a sense among lawyers — sometimes explicitly stated, at least in private — that judges are always grateful for anything that clears up their dockets a little bit. Thus, we tend to assume a judicial bias in favor of any resolution short of final disposition on the merits — whether by voluntary dismissal of a case or appeal, settlement of a case, or even a stipulated reversal of a judgment on appeal. Not to be sycophantic here (besides, I have no reason to believe any judge has seen this blog), but I think this is somewhat cynical and does not give credit to the hard work of the judiciary.

UPDATE (10/19/07): Decision of the Day comments on the case with more detail and a focus on concerns that attorneys were gaming the system, as does California Appellate ReportAppellate Law & Practice has somewhat less respect for Judge Kozinski’s concerns.

State Law in a Federal Court

In Ryman v. Sears, Roebuck and Co., case no. 06-35630 (9th Cir. Oct. 12, 2007), the Ninth Circuit reiterates some very basic rules for a federal court to interpret state law. The district court refused to apply state law precedent to a matter of state law because (1) the precedent was from the state’s intermediate appellate court rather than the state’s highest court, and (2) the intermediate court’s opinion had been criticized by other federal courts.

The Ninth reminds us that neither reason justifies ignoring relevant precedent from a state’s intermediate appellate court. In the absence of a relevant decision from the state’s highest court on a matter of state law, a federal court must follow the decisions of the state’s intermediate appellate court unless “the federal court finds convincing evidence that the state’s supreme court likely would not follow it.”

If you’re new to the blog, you may have missed a few earlier posts regarding related questions on federal court determinations of state law, both of them with links to related articles or blog posts by Howard Bashman at How Appealing.

In A Conundrum on Federal Court Determinations of State Law Issues, I examined the question of whether a federal district court is required to follow circuit court of appeals precedent on state law issues or instead is not bound by the earlier decision if state law developments since the circuit decision have changed the result under state law.

In Follow-Up to “A Conundrum on Federal Court Determinations of State Law Issues,” I noted the disagreement between Bashman and me on the question posed in the earlier post and weighed in on a related question posed by Bashman: whether a circuit court of appeals may revisit a determination of state law without en banc review.

Law Prof Seeks Postponement in Federal Rules Amendments

Civil Procedure Prof Blog links to a letter/white paper from Professor Jeff Parker of George Mason University School of Law, in which he asks Congress to delay implementation of the changes to the Federal Rules of Civil Procedure.  The amendments are intended largely as a “re-styling” of the rules without substantive change, but Professor Parker’s not so sure.  Here’s an excerpt from the abstract:

I recognize that this is an extraordinary request, but this year’s pending amendments also are extraordinary, as they will completely re-write each and every provision of the Civil Rules for the first time in their 70-year history. More fundamentally, they adopt a novel concept of rule interpretation – what one of the proponents calls “clarity without change” – that is antithetical to our jurisprudence and likely to produce disarray in the procedural system.

There is a substantial body of opinion, in which I join, that the proposed amendments are likely to produce a material degradation of civil justice in our federal courts by imposing enormous burdens of transitional cost, in exchange for little or no benefit. Perhaps more importantly, there is no indication that the judicial rulemaking committees have fully considered the potential consequences of these sweeping changes.

For some of that “substantial body of opinion,” see links in prior posts here and here.

Federal District Court and Bankruptcy Court Transcripts to be Available Online via PACER.

The Judicial Conference of the United States has voted to make transcripts of federal district and bankruptcy court proceedings available online through the PACER system.  Transcripts will be available for the same $0.08/page rate as other documents, but there’s a catch: they won’t be available on PACER until 90 days after they have been delivered to the clerk.  Until then, you’ll have to view the transcript at the clerk’s office or order a copy from the reporter. 

The press release doesn’t say when this policy goes into effect.  Nor does it say whether the transcripts will be in scanned PDF format like other documents or will instead be text-searchable files.  In my mind, there’s really no excuse for not offering text-searchable downloads.

Thanks to Tami Cowden of Appealing in Nevada for the link.

Ninth Circuit Holds that the Political Question Doctrine is a Jurisdictional Limitation

The Ninth Circuit holds that the political question inherent in Corrie v. Caterpillar, Inc., case no 05-36210 (9th Cir. Sept. 17, 2007) precludes the exercise of Article III jurisdiction.  Until Corrie, the Ninth Circuit has not clearly decided whether the political question doctrine is a jurisdictional limitation or merely a self-imposed prudential restraint.

The court evaluates competing cases on the issue, and even finds that the six factors used in evaluating whether the case concerns a political question, enumerated in  Baker v. Carr, 369 U.S. 186 (1962), are themselves divided into jurisdictional and prudential considerations.  It reconciles this dichotomy by deciding that the doctrine’s prudential concerns can help define the scope of subject matter jurisdiction under Article III of the Constitution:

Prudential considerations look to the consequences of a court asserting its jurisdiction, while purely constitutional ones look to the text and structure of the Constitution itself for clues about the limitations on a court’s Article III powers. Because the Constitution’s grants of authority are often set forth in broad strokes, courts often take prudential concerns into account to assist them in the difficult task of discerning which cases the Constitution forbids them from hearing.  [Citation.]  We have accordingly pointed to Justice Powell’s view that the first three Baker factors focus on the constitutional limitations of a court’s jurisdiction, while the final three are “prudential considerations [that] counsel against judicial intervention.” [Citations.]

In this sense, the political question doctrine may have a prudential element to its application, and it is not a contradiction to speak of the political question doctrine as both prudential and jurisdictional.  But it is at bottom a jurisdictional limitation imposed on the courts by the Constitution, and not by the judiciary itself. [Citation.]

We hold that if a case presents a political question, we lack subject matter jurisdiction to decide that question.

By now, you’re probably wondering just what political question was presented.  Plaintiffs were family members of persons killed by Israeli Defense Forces bulldozers supplied by Caterpillar and paid for by the U.S. Government.  For analysis of how the court decided the existence of a political question, see Decision of the Day.

Why the Ninth Was Reluctant to Depart from Sister Circuits on Patent Question

If you’re a federal circuit judge, and you and your colleagues on the panel are convinced the court should come out one way, but all other circuits to consider the question have come out the other way, what do you do?  “Circuit splits arise all the time,” you tell yourself.  “We should decide this the way we see it.”

Well, maybe that’s what you do most of the time.  But in Zila, Inc. v. Tunnell, case no. 05-15031 (9th Cir. Sept. 5, 2007), the Ninth Circuit shows deference to the other circuits’ interpretation of Supreme Court precedent because the issue involves an inventor’s right to royalty payments after expiration of patents, and thus implicates federal patent law, which in turn invokes “particularly strong national uniformity concerns”:

This consensus view [of the other circuits] may overread both Brulotte and Aronson for the reasons we have surveyed, and gives rise to the trenchant criticisms of the commentators and of the Seventh Circuit in Scheiber.  But the Supreme Court opinions are sufficiently opaque that we cannot say with any certainty that the consensus view is wrong.  As patent matters give rise to particularly strong national uniformity concerns, see S. Rep. No. 97-275, at 4 (1982) (citing the “special need for national uniformity” in the interpretation of patent law as support for the creation of the Federal Circuit), we hesitate more than is ordinarily the case to open up an intra-circuit conflict [citation].  We therefore adopt the majority approach . . . .

A good lesson to remember when it comes to appeals involving patents. Patent laws are generally are tricky and must be understood clearly before signing anywhere. When it comes to getting a patent done it’s better to use professional services from the best patent attorney in Fort Lauderdale as they have years of experience thus can help you get a patent easily and if any issue comes up, they can even help defend your case and your patent rights.

It’s also good to remember that the court should have referred to its potential split from other circuits as an inter-circuit split, not an intra-circuit split.  Another of my pet peeves.

Ninth Circuit Website Kudos

Howard Bashman’s latest column at is about the need for more free internet access to federal court case information.  Acknowledging that access to published and unpublished decisions is very good, he laments the general lack of access to information about cases pending rehearing en banc

The Ninth Circuit is one of two he praises. Specifically, he lauds the Ninth for providing free access at its website to a list of cases pending rehearing en banc, the issues as to which rehearing has been granted, the rehearing petitions and oppositions.  Indeed, he calls it “a wonderful example of what the other federal appellate courts should be doing.” 

Now I feel a little guilty.  I agree the Ninth Circuit provides some great resources on its web site (my favorite being its guide to standards of review), but I’ve never liked the organization of the site.  Thanks to Mr. Bashman, I’m now counting my blessings.

Adult Bookstore Case Results in Certified Question to State Supreme Court

Under rule 8.548(a), California Rules of Court, a Federal Court of Appeals, the U.S. Supreme Court, or the court of last resort of another state may ask the California Supreme Court to answer a question of California law where “(1) The decision could determine the outcome of a matter pending in the requesting court; and (2) There is no controlling precedent.”  Most lawyers are already familiar with this procedure, at least in principle.

What gives a special appellate twist to Fantasyland Video v. County of San Diego, case no. 05-56026  (August 7, 2007) is that the Ninth Circuit asks the California Supreme Court to specify the standard of review to apply in the case.  Plaintiff, operator of an adult “arcade, bookstore, novelty shop, and video store,” challenged a county ordinance that required adult businesses to close between 2 a.m. and 6 a.m.  The question certified by the Ninth Circuit is very specific:

Under the California Constitution’s liberty of speech clause, should we review the constitutionality of an ordinance that sets closing times for adult entertainment establishments under strict scrutiny, intermediate scrutiny, or some other standard?

Another thing I like about this request from the Ninth Circuit is that it doesn’t claim there are no California cases on point.  It says the most relevant case on the issue is impossible to figure out:

We certify the above question to the Supreme Court of California for an authoritative construction of the most directly relevant opinion on the issue, People v. Glaze, 27 Cal. 3d 841 (1980).

In other words, “Please tell us what the heck you were trying to say in that mess (and in the seemingly inconsistent cases that followed).”  But they asked it nicely.

California Appellate Report offers some details on the “frenetic pace” at which the Ninth Circuit has been certifying questions to state supreme courts this year, as well as some tongue-in-cheek commentary on the wisdom of the ordinance challenged in this case.

Defendant’s Waiver of Right to Appeal Does Not Deprive Ninth Circuit of Appellate Jurisdiction

Ninth Circuit Blog has a pretty good write-up on last Wednesday’s Ninth Circuit en banc decision in United States v. Castillo, case no. 05-30401 (July 25, 2007), in which the court vacates the panel opinion and holds that it has jurisdiction to hear a criminal defendant’s appeal based on a pre-plea motion where the defendant waived appeal of pre-plea issues as part of his guilty plea.  Federal Rules of Criminal Procedure cannot expand or contract subject matter jurisdiction, and it cannot be waived.

In my observation, the tendency to confuse jurisdiction with procedure is way too common.  I recently posted, for example, about confusion between forum selection and jurisdiction in a civil case. 

The Ninth Circuit likewise notes the lamentable prevalence of confusion, citing Kontrick v. Ryan, 540 U.S. 443, 455 (2004):

[c]larity would be facilitated if courts and litigants used the label “jurisdictional” not for claim-processing rules, but only for prescriptions delineating the classes of cases (subject-matter jurisdiction) and the persons (personal jurisdiction) falling within a court’s adjudicatory authority.


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UPDATE: (7/31/07): California Appellate Report offers some thoughts on how Judge Callahan’s dissent in this 14-1 decision might affect her chances for a nomination to the U.S. Supreme Court.

Ninth Circuit’s Annual Judicial Conference Convenes Under Cloud of More “Split the Circuit” Controversy

This article at starts:

While a bill to split the nation’s largest federal appeals court lies dormant in Congress, that didn’t prevent grumbling at the opening of the 9th Circuit’s annual judicial conference over repeated efforts to divide the circuit.

There are several quotes from judges on their views — and fears — about a potential circuit split, including Chief Judge Schroeder’s reaction to the L.A. Times opinion piece arguing that the Ninth Circuit has a high reversal rate because its size makes it more likely that two “extremist” judges will be assigned to any given panel.  My coverage of the L.A. Times piece, with links to coverage by other blogs, is here.

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More on the Restyled Federal Rules of Civil Procedure

University of Arkansas School of Law Assistant Professor Scott Dodson has a guest post at Civil Procedure Prof Blog about the pending “restyled” Federal Rules of Civil Procedure.  In addition to the article by Professor Dorf that I posted about last week, he links to a second article, in which he says the author “argues that the restyling creates more problems than solutions” and “illustrates the problems with a few key examples, including Rule 65.”  Visit his post for the link.

Professor Dodson is also soliciting thoughts from all comers on the restyling of the rules.  So if you have any, head over there.

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Procedural Maneuvering at its Finest and the Double Duty Judge

The Ninth Circuit’s decision in Vacation Village, Inc. v. Clark County, Nevada, case no. 05-16173 (July 23, 2007) delivers a “two-fer” of “bloggable” items.

First, the procedural maneuvering.  Landowners sued Clark County for inverse condemnation in Nevada state court.  While the action was pending, the Landowners filed a voluntary Chapter 11 bankruptcy petition, listing the inverse condemnation claim as a contingent and unliquidated claim of the estate. When the Landowners advised the state court judge that they were not ready to proceed with trial, the court advised them that there were no available trial dates between then and the expiration of the five-year limitations period under state law for bringing a claim to trial (which was about three months off) and that the case would be automatically dismissed when the limitations period ran.

What to do?
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The Ninth Circuit’s Reversion to 11-Judge En Banc Panels

The Ninth Circuit reverted to 11-judge en banc panels at the beginning of this month after a brief experiment with 15-judge panels.  This short article at provides some limited background on the move, including comment from one circuit judge:

“It was pretty unanimous that we were not gaining anything by going from 11 to 15 judges,” said 9th Circuit Judge Diarmuid O’Scannlain, who is based in Portland, Ore. O’Scannlain, an appointee of President Ronald Reagan, said, “I would have preferred to wait until the two years were up because that is what we notified the bar we would do.”

The Ninth Circuit is the only circuit that does not have every judge sit on every en banc panel.  This has been one of the size-related criticisms leveled against it.  The Ninth Circuit’s unique en banc procedure has been defended by judges from the circuit in testimony to Congress, including Judge Thomas and Judge Kozinski, each in his capacity as the en banc coordinator for the court.

Judge Thomas’s testimony in 2005 included his view that the 15-judge panels would “ameliorate” the concern that the use of only 11 judges on en banc panels results in a decision by less than a majority of the court’s judges.

Long before the court adopted the 15-judge panel, Judge Kozinski’s statement in 2003 claimed that the large size of the court was a benefit to en banc review because even though not all judges sit on the en banc panel, “[t]he fact that a large number of judges look at a decision to decide whether it should be taken en banc means that cases get a much more thorough review in a large circuit.”

As this testimony demonstrates, the debate over the size of the Ninth Circuit court has been going on for years.  And if this recent spike in blog posts about the size of the court is any indication, the debate isn’t going to end any time soon.

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End Life Tenure for Supreme Court Justices?

This post at previews a book and corresponding law review article arguing for 18-year fixed terms for U.S. Supreme Court justices.  The premise seems to be that the founders could never have contemplated the long durations of most recent justices’ tenures, which arise from increases in life expectancy and retirement age.  The post has lots of links and some tidbits of info about the service of Supreme Court justices.

FRCP Amendments Not So “Stylistic” After All?

Back on May 14th, I noted that proposed amendments to the Federal Rules of Civil Procedure had been transmitted to Congress and noted that the vast majority of changes were intended to be “stylistic” only, i.e., not making any substantive change. I provided some links to advisory committee reports and other explanatory information.

But are the changes purely stylistic?  Adjunct Law Prof Blog points to an article by Columbia Law Professor Michael Dorf challenging that characterization, noting that despite the intent that the changes be stylistic only, some unintended ambiguities, and corresponding substantive changes, may result.

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Reduce Reversals by Splitting the Ninth Circuit?

If you’ve followed any of the debate about splitting the Ninth Circuit into two circuits, check out incoming Vanderbilt law professor Brian Fitzpatrick’s op-ed piece in the Los Angeles Times from Wednesday, in which he asserts that the Ninth Circuit’s size is partly to blame for its high reversal rate because it makes it more likely that two “extreme” judges will be assigned to the same panel:

Proponents of splitting the 9th Circuit largely have been unable, however, to connect the colossal court’s size to its high rate of reversal. But there is a connection. Indeed, it can be shown mathematically that, as a court grows larger, it is increasingly likely to issue extreme decisions.

We know that all judges are not created equal. Some are more ideologically extreme, more willing to push the law in a liberal or conservative direction, to find ways around precedents they do not like. Such extreme jurists are a minority on any federal court of appeals, but these courts don’t typically decide cases by a majority vote of their entire memberships. Rather, cases are heard by panels of three judges selected at random. So, despite their small overall numbers, extreme judges will occasionally make up a 2-1 majority.

Professor Fitzpatrick goes on to a more specific numerical analysis.

Prawfs Blawg challenges Fitzpatrick’s contention that the Ninth Circuit’s reversal rate indicates that it is “not doing a very good job.”  There’s some lively debate in the comments there.

This post by Jonathan Adler at The Volokh Conspiracy briefly summarizes Fitzpatrick’s piece and likewise generates some energetic discussion in the comments.

SCOTUSBlog has the most detailed statistical counter-analysis.  Again, check the comments.

Finally, the Wall Street Journal Law Blog summarizes Fitzpatrick’s piece. Do I even need to tell you to check the comments?

After reading all the comments, one conclusion is inescapable: an “extreme judge” is in the eyes of the beholder.  Now there’s a shock.

UPDATE (7/16/07): University of Richmond law professor Cullen Seltzer has a column at Slate entitled “In Defense of the 9th Circuit.” I’m guessing that all those commenters who told the Tennessee-based writer of the L.A. Times piece not to tell us how to do things in California are going to find commentary from this Virginia professor to be less objectionable.

Follow-Up to “A Conundrum on Federal Court Determinations of State Law Issues”

In this post last week, I noted that Howard Bashman (of the How Appealing blog) and I had nearly simultaneously (and quite independently) come up with similar questions on federal court determinations of state law.  I had pondered the question as a “hypo” for my legal research students; Bashman asked it in the context of a recent Third Circuit opinion, Jaworowski v. Ciasulli, case no. 05-1423 (June 18, 2007), in which the district court had followed a 19-year-old Third Circuit decision predicting how the state’s high court would decide the state law question.  On appeal, the Third Circuit reconsidered the state law question and decided that the state’s highest court would now decide the issue differently. 

The common question posed by me and Bashman (as stated by him):

It is interesting to consider whether it would have been appropriate, in the first instance, for the federal district court to ignore the earlier Third Circuit ruling if the federal district court were confident that the earlier Third Circuit ruling had incorrectly predicted how New Jersey’s highest court would rule on the issue presented, even though New Jersey’s highest court hadn’t yet ruled on the issue.

Bashman posed the question, and I offered my answer in last week’s post.  Bashman now offers his answer in his weekly article.

In answering the question, Bashman sides with predictability, feeling that the best approach is for the district court to adhere to the circuit’s ruling until the circuit decides to alter its prediction of state law.  In my consideration of the issue, I opted for accuracy over predictability, suggesting that the district court should use the circuit opinion as a starting point and evaluate the prediction therein in light of subsequent developments in state law.

In his article, Bashman considers a second question: whether the Third Circuit was right to reconsider the question in the absence of en banc review.  He and I reach the same conclusion on this one, for similar reasons . . .
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A Trip Down a “Dark Corridor”

In Linear Technology Corp v. Applied Materials, Inc., case no. H028343 (June 18, 2007), the Sixth District Court of Appeal offers a primer on determining whether a case is one “arising under any Act of Congress relating to patents” within the meaning of that language in Title 28 United States Code section 1338(a).

Linear purchased equipment from the three defendants and was sued for patent infringement by a third party, with whom it settled.  Linear alleged its use of the equipment led to the patent infringement suit and sought indemnity from the sellers by suing them in state court on multiple causes of action.  The superior court dismissed the case in its entirety, finding that the complaint failed to state a claim as to two of the causes of action and that it lacked jurisiction over the remainder because section 1338(a) conferred exclusive jurisdiction over them to the federal district court.

The claims dismissed for lack of jurisdiction were for breach of contract, breach of the implied covenant of good faith and fair dealing, implied equitable indemnity, and breach of statutory warranty.  The Sixth District finds that the claims do not “arise under” the patent laws, and therefore reverses as to those claims (though it affirms the dismissal of fraud and unfair competition claims on non-jurisdictional grounds).  The decision makes for a good read in part because Linear wins the jurisdictional argument despite the court’s disagreement with it over the nature of the third party action.

The single best line of the opinion is this quotation from Arthur Young & Co. v. City of Richmond (4th Cir. 1990) 895 F.2d 967, 969 fn.2, which the court uses to set the stage for its jurisdictional analysis:

The line between cases that “arise under” [the patent laws] and those that present only state law contract issues is “a very subtle one,” [citation] and the question leads down “one of the darkest corridors of the law of federal courts and federal jurisdiction.” [Citation.]

Makes it sound creepy, doesn’t it?

A Conundrum on Federal Court Determinations of State Law Issues

In my legal research class, I recently went over the general principle for how a federal court sitting in diversity should determine state law issues. The federal court looks first to see if the issue has been decided by the applicable state court of last resort. In the absence of an opinion from the state court of last resort, it must predict how that court would decide the issue based on input that would be considered by that court.

I came up with a “hypo” for my students:

You are a federal district judge presiding over a diversity case. You are presented with a question of state law on which the high court of the state has not spoken. However, there is a published decision from your circuit court of appeals that predicts how the state’s high court would decide the issue. Must you follow that decision of the court of appeals, or should you decide independently whether the state’s highest court would still reach that decision?

Think the answer is obvious? I don’t think so at all, which is why I thought it was a good hypo. It sets up a collision between the mandatory authority of the court of appeals and the rule for deciding issues of state law.

Then, before I could present the hypo in the next class, I discovered as I scanned the internet for blog subjects last night that my scenario isn’t so hypothetical anymore. . . .

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Claim Challenging Removal of Cross from County Seal Fails in Ninth Circuit

In 2004, under legal threat from the American Civil Liberties Union, Los Angeles County removed from its official seal an image of a cross (which shared the seal with the Roman goddess Pamona, engineering instruments, a Spanish galleon, a tuna, a cow, oil derricks, the Hollywood Bowl, and two stars representing the area’s motion picture and television industries).  It replaced the cross with a depiction of the first Spanish mission established in the county (which depiction did not include a cross), and made other changes to the seal.  Plaintiff Ernesto R. Vasquez, an employee of the County of Los Angeles, filed suit in federal court under 42 U.S.C. § 1983, claiming that the removal of the cross from the seal violated the Establishment Clause of the First Amendment to the United States Constitution because it conveyed, in the words of the Ninth Circuit, a “state-sponsored message of hostility toward Christians.”  The County moved to dismiss, and the district court dismissed the case with prejudice.

The Ninth Circuit affirms in Vasquez v. Los Angeles County, case no. 04-56973 (May 15, 2007). (The “before” and “after” seals are appendices to the opinion but are provided in a separate PDF file here.)  The court finds that Vasquez has standing because he is a county employee that has frequent regular contact with the offending county seal.  It also ruled that the claim was not mooted by the inclusion of the Spanish mission as a substitute for the cross, finding that the district court’s conclusion to the contrary, based on its rationale that substitution of one Christian symbol for another could not be considered hostile to Christianity, confused mootness with the merits of the case.

That’s where plaintiff’s luck runs out.  The court turned next to the oft-vilified Lemon test (Lemon v.Kurtzman, 403 U.S. 602 (1971)), under which a government action is consistent with the Establishment Clause if it: (1) has a secular purpose; (2) has a principal or primary effect
that neither advances nor disapproves of religion; and (3) does not foster excessive governmental entanglement with religion.  Reaching beyond the pleadings, the court concludes that the cross was removed from the seal for the secular purpose of avoiding threatened litigation over an alleged Establishment Clause violation and that the purpose of the removal was to restore neutrality.  Finally, it rejects plaintiff’s contention that the political divisiveness arising from the controversy was sufficient to plead excessive entanglement.

Perhaps I have greater interest in this case because I live in a neighboring county and closely followed the original controversy over the cross and seal as it developed, but I am surprised to find only one other blog post about it.  That post is here at the “Decision of the Day.”  (It’s also possible that bloggers will pay more attention to this case in the coming days but were too busy posting about the Fair Housing Council v., LLC case, which also came out yesterday and, as I posted earlier today, took the legal blogosphere by storm.)

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Blogs First – Wikis Next?

Its old news that courts have cited blogs in their opinions.  A compilation of such opinions is posted here by Law Blog Metrics.  That list is more than nine months old and lists citations to 27 cases citing blogs a total of 32 times. (I’m having trouble finding anything more recent.  If anyone knows of a more current compilation, email the link to me me and I will post it.)

Citations to blogs should not be too surprising.  Most are, after all, commentary.  While not as formal or thorough as a law review article (to put it mildly), the principle behind citing a blog is not, to my mind, much different than citing a law review article, at least where the blog is well-reasoned.

Is similar treatment in store for the legal wiki?  A wiki is different from a blog because virtually anyone (though that can be restricted by registration) can edit, add, or remove content, often anonymously — as anonymously as the Internet allows, anyway.

Before we get to legal wikis, it is worth noting that the grandaddy of all wikis, Wikipedia — an online encyclopedia produced by wiki-type editing — appeared to be gaining traction in court opinions, law reviews, and legal blogs as long as a year ago, according to this paper published at the Columbia University website.  Still, the paper’s author Patrick Ferguson notes, healthy skepticism remained at the time of his writing:

Wiki skepticism is not only the product of a citation-obsessed legal culture.  Professors in all disciplines are highly critical of their student’s citations to Wiki definitions. However, this criticism is often directed at students who rely solely on Wiki for information rather than as a starting point for research. A free, widely accessible encyclopedia is a great place to start research and with 2.5 billion page views per day, a tremendously important asset to our culture. While Wiki articles may contain errors, they are often the best easily-findable source on the web for technical definitions. Interestingly, a study by Nature found that Wikipedia has only marginally-higher error rates than Encyclopedia Britannica.  (Footnotes omitted.)

Despite being a year old, the paper is a pretty good starting point for anyone interested in the future of wikis and the law.

Interested readers should turn next to this article by Massachussetts lawyer Robert Ambrogi (who also blogs about legal websites at Robert Ambrogi’s Lawsites), which provides some great examples of legal wiki successes and links to several active legal wikis.

Next, listen to this recent podcast of Lawyer 2 Lawyer hosted by Ambrogi and California attorney J. Craig Williams, who blogs at May it Please the Court.  They provide a list of their guests in this post, which should convince you it’s worth your time to listen (it’s slightly over a half hour long) if you are interested in keeping up with technology’s impact on the law.  Some teasers from the podcast . . . Asked: Is it possible that wikis could eventually put Lexis and Westlaw out of business?  Predicted: within 12 months, most “major organizations” will be using a wiki in “one form or another.”

In this post, Ambrogi notes the launch of the Seventh Circuit’s wiki, with a subscription-only link to an article in the National Law Journal.  Ambrogi notes this is a first for the federal judiciary.  (I actually learned about Ambrogi’s post from this funny post — follow the link to “The Plig” for a laugh — at the Appellate Law & Practice blog.)

The Seventh Circuit’s wiki is hosted by a federal court and allows editing only by registered users.  Will that give it a credibility edge that leads to it being cited in opinions?  It should at least be useful much as a treatise or encyclopedia is — as an initial resource to lead the reader to authoritative law.  But the Seventh Circuit wiki also includes a (currently blank) current events page.  If that page strays from straight news to opinion, it may generate leading edge commentary that could find its way into published court opinions.

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Is it Futile to Cite Federal District Court Opinions? (Updated)

At How Appealing, Howard Bashman gives us this post about citing to district court opinions. He quotes a Seventh Circuit opinion decided yesterday that admonishes lawyers not to cite district court opinions, because they “lack authoritative effect,” and instead to incorporate “into their own presentations” whatever persuasive rationale is offered in the opinion.

Bashman appears to doubt lawyers will heed this advice:

The reality is that advocates will always regard a legal proposition that a judge has accepted — even if only a “lowly” federal district judge — as potentially more worthy of another court’s credence than a proposition for which no authority is cited.

I think he’s right. And opposing lawyers will always feel compelled to respond on the merits rather than point out the cited case’s lack of authoritative effect.

UPDATE (5/4/07): I got to thinking about this post last night and had some thoughts for updating it today. It could wait until my thoughts formed more completely. After all, the blog was only in its fourth day and had a total of 20 or so hits. Then I woke up to see the avalanche of hits from the How Appealing blog (thanks for the traffic, Mr. Bashman) and wished I stayed up late last night to update.

There’s a good reason lawyers will always feel compelled to respond to the merits of a cited district court opinion. They should — at least if the merits were presented. The key is to stick to the merits without fighting over the significance that the point has been adopted by a district court.

Take a close look at where the Seventh Circuit drew the line. Here is what Chief Judge Easterbrook’s opinion said:

Finally, the litigants have debated at length the significance of Chicago Truck Drivers Health & Welfare Fund v. Teamsters Local 710, 2005 U.S. Dist. LEXIS 42877 (N.D. Ill. Mar. 4, 2005), which discusses the handling of stock received in demutualization and the importance of truck drivers integrity, even using resources as truck accident attorneys Fielding Law in case of injuries during work. It is a pointless debate. The Teamsters’ plans have terms different from those of the Professional Benefit Trust. What’s more, decisions of district judges have no authoritative effect. [Citations.] District judges’ opinions often contain persuasive observations, but these can be incorporated into the parties’ briefs. It is never helpful to have an [sic] lengthy exchange on what a particular district court’s opinion “really means” and whether that case was correctly decided. The parties should learn what the opinion has to teach and weave its wisdom into their own presentations.

What’s the difference between arguing “whether the case was correctly decided” and “weaving its wisdom” into a brief, after which the parties will debate that wisdom? The only difference seems to be an actual citation to the opinion. Thus, the bottom line appears to be that the court wants to hear an argument about the merits of a position taken by a district court, but it doesn’t (or at least shouldn’t) care that a district court has actually adopted that position.

Fight over the merits of an idea, proposition, argument or what have you all you like. Just don’t slug it out over the significance of a district court having said it.