If we are really making a practical prediction, why is this one
a sound one? Seems to me that much depends on the panel that the case
draws; that 3 of 28-odd judges split 2-1 in one direction doesn't tell
us much about whether a different 3 will go the same direction. The
refusal to rehear the case en banc is also not that helpful, since in
practice many votes against a rehearing aren't really votes on the
merits -- the judges might just think that, like 99+% of circuit cases,
this one doesn't deserve the time of 11 judges, and they might figure
that the Court made this mess and should therefore clean it up. So
practically speaking I doubt that the earlier panel decision is much of
an indication at all of what the 9th Circuit will do, even setting aside
the possibility of changed minds or new appointments.
Eugene
Steve Jamar writes:
I don't think it is binding as a technical matter, but practically
speaking, if the 9th Circuit rules one way on the merits in one case,
one would expect them to do so again. Since the S Ct did not rule on
the merits, there is no binding US S Ct precedent and one looks for the
best persuasive authority -- the earlier 9th Circuit decision. It may
not be mandatory authority, but it is just about the best indication one
can find as to what the 9th Circuit will do.
Of course it may change its mind or judges may have left and been
appointed and so on and that could change the result.
Steve
--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8428
2900 Van Ness Street NW
mailto:mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
"Nothing that is worth anything can be achieved in a lifetime; therefore
we must be saved by hope."
Reinhold Neibuhr
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