Appellate Procedure,  Decision on Appeal,  Legal Writing

The Scope of Plurality En Banc Decisions

In a post from the weekend cleverly titled to include “Ninth Makes Up its Mind on Inability to Make Up its Mind,” Ninth Circuit Blog performs a great public service by providing resources to help understand the scope of “fractured” en banc cases decided by plurality opinion. Definitely worth a read, especially if you are relying on such authority and want to “nail down” its strength and limitations.

Ninth Circuit Blog’s post concludes that there’s advantage to be had from ambiguity:

Come to think of it, if the federal judiciary is increasingly hostile to the rights of criminal (and particularly, indigent) defendants, maybe plurality decisions are good things. After all, an exploitable ambiguity is far better than a clear defense defeat. If that’s the case, keep up the good work, Supremes and Ninth!

Correction (3/3/08): The post addresses Supreme Court plurality opinions as well as en banc Court of Appeals decisions.