• Appellate Procedure,  Standard of Review

    En banc ninth tries to clear up the “abuse of discretion” standard

    The “abuse of discretion” standard of review, depending on the particular court applying it and the particular case in which it is applied, can sometimes seem about as clear as mud. The en banc Ninth Circuit set out to clear up the standard in United States v. Hinkson, case no. 05-30303 (9th Cir. Nov. 5, 2009): Today we consider the familiar “abuse of discretion” standard and how it limits our power as an appellate court to substitute our view of the facts, and the application of those facts to law, for that of the district court. *** [W]e conclude that our “abuse of discretion” standard is in need of clarification.…

  • Ethics,  Judges,  Ninth Circuit

    Ninth Circuit Judicial Complaint Disposition Orders Published Online

    Via NLJ’s L.A. Legal Pad comes news that, according to this press release from the Ninth Circuit, “disposition of judicial misconduct and disability complaints against federal judges sitting in the Ninth Circuit will be publicly available via the Internet” starting this month.  Three orders are already up. The main page includes links to the governing rules,  a page listing the orders, and a downloadable complaint form.

  • Appeals,  Appellate Procedure,  Federal Procedure,  Waiver of Issues

    Chutzpah on Appeal

    “Chutzpah” is about the most polite word I could come up with for the appellant’s audacity in United States v. Moreland,  case no. 05-30541 (9th Cir., Dec. 13, 2007). Moreland apparently swindled people out of $73 million, so I’m going to assume he had a little bit of money, legitimately earned, set aside for his defense.  Yet he fought tooth and nail to proceed pro se, which is where all his problems started. The decision is covered very well, and in some detail, in this post at Decision of the Day, which begins: In my line of work, I see all kinds of appellate arguments: brilliantly creative, colossally stupid, and…

  • Ninth Circuit

    We’re #1!

    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…

  • Ninth Circuit

    Defense of the Ninth Circuit

    The Ninth Circuit Court of Appeals gets plenty of criticism.  Not like you need me to point it out to you, but I have done so, along with pointing out some defenses.  See here, here and here. NLJ’s L.A. Legal Pad links to an article in The National Law Journal (unfortunately, behind a subscription wall) with this introduction: “[C]atcallers should recognize that 27-judge court does not get to pick its cases and faces a great mix and concentration of cases compared to other circuits, finds a story in The National Law Journal.” Might be worth checking out.