So, it's probably just me, but it seems as if the 9th Circuit produced a particularly facile analysis of the balancing of the interests in the en banc opinion. Could it be they are daring the Supremes to reverse them?
-----Original Message----- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:46 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc No, I don't think so, because the mandate has not issued (or effectively was recalled). In the absence of issuance of the mandate, the panel's opinion has no effect on the parties, I think. Per Judge Thomas's order of Sept. 16, the mandate is not to issue except on further order of the court (as I noted in an earlier post). Per the court's web site the hearing is set for Monday 1pm Pacific Time. The en banc panel will consist of Chief Judge Schroeder, and Judges Kozinski, O'Scannlain, Kleinfeld, Tashima, Silverman, Graber, McKeown, Gould, Tallman and Rawlinson. See http://www.ca9.uscourts.gov. Click on "En Banc Court Information." Mark S. Scarberry Pepperdine University School of Law -----Original Message----- From: Samuel Issacharoff [mailto:[EMAIL PROTECTED] Sent: Friday, September 19, 2003 12:43 PM To: [EMAIL PROTECTED] Subject: Re: CA9 takes case in banc I notice the order says that the decision is not to be cited as precedent to not only the Ninth Circuit, but any district court in the Ninth Circuit. Under Ninth Circuit procedure, does this include not being "cited" to the district court that refused to stay the election? If so, is this the functional equivalent of lifting the stay? ****************************************** Samuel Issacharoff Harold R. Medina Professor in Procedural Jurisprudence Columbia Law School 212-854-2527 212-854-7946 (fax) Edward A Hartnett <[EMAIL PROTECTED]> To: [EMAIL PROTECTED] Sent by: Discussion cc: list for con law Subject: CA9 takes case in banc professors <[EMAIL PROTECTED] v.ucla.edu> 09/19/2003 03:21 PM Please respond to Discussion list for con law professors The order taking the case in banc is available at http://www.ca9.uscourts.gov/ca9/newopinions.nsf/F656D78784F3200988256DA60063 06FE/$file/recall_enbanc.pdf?openelement I notice that the order does not vacate the panel decision, but rather decrees that it not be cited as precedent in the Ninth Circuit. Is that the Ninth Circuit's usual practice? My understanding was that most courts of appeals vacated the panel decision upon deciding to rehear the case in banc, reflecting the view that the court of appeals (whether held by a panel or sitting in banc) is a unitary court exercising appellate review over the district court (or administrative agency). An alternative view might be that the in banc court exercises appellate jurisdiction over the panel. The difference in how the in banc court is conceptualized can matter if the in banc court divides evenly, but thankfully that should not be an issue with an eleven member "in banc panel." Ed Hartnett Seton Hall
