Today’s decision in Dukes v. Walmart, Inc., case no. 04-16688 (9th Cir. Dec 11, 2007), in which a panel of the Ninth, on rehearing, again affirms the class certification in this gender discrimination case, prompts this from Howard Bashman at How Appealing:
In the Ninth Circuit, to a degree not seen in any other federal appellate courts, published opinions often resemble works in progress. A three-judge panel will issue an opinion, the losing party will petition for rehearing and/or rehearing en banc, and then months later the panel will withdraw its original opinion and substitute in its place a new and presumably improved decision.
Bashman watches courts all over the country, and he seems to think the Ninth has more “do-overs” than any other circuit. Maybe they ought to call them tenative opinions?
UPDATE (12/12/07): For commentary on the merits of Dukes, see Decision of the Day.