Ethics,  Legal Research,  Legal Writing

Arguing against Binding Authority

What do you do when your only hope is to take a position that has been soundly rejected by the same appellate court in a prior case?  Well, you don’t do it by arguing for that position as if that bad case never happened and without citing it.  The Ninth Circuit is clearly a little peeved with the Department of Justice for doing just that in Singh v. Gonzales, case no. 04-70300 (9th Cir. Sept. 7, 2007):

It is the responsibility of the Department of Justice and its lawyers to be aware when its positions have been rejected by the court. While it is acceptable to make a rejected argument for purposes of preserving it for en banc or Supreme Court consideration while acknowledging that it has been rejected by the court, it is not acceptable to repeat an argument already rejected without acknowledging the case that rejected it, particularly where it is the Department of Justice itself that was involved in earlier case. Another such repetition of this same argument in this court will be considered sanctionable behavior.

Comedian Steve Martin used to joke that a lot of problems can be solved with two simple words: “I forgot.”  As in “I forgot to pay my taxes” or “I forgot killing someone was against the law.”

“I forgot about that binding case that soundly rejected the position I am advocating” works about as well.