| What is the best available authority on what the 9th circuit might decide? A published decision on the merits. Even if it has been reversed on other grounds. While one could well get a different panel and the court refuse to hear it en banc and so get a different result, as a district court judge, I would still play the fiction that it is the court that decided, not three individuals. So I would, as a district court judge, decide it on the basis of the controlling circuits previously published decision. The prudential grounds argument strikes me as good as just about any for finding it binding, though I am still unconvinced. I guess I would find the use of prudential grounds to buttress my decision to follow the now otherwise defunct decision. As a legal procedural matter, the decision was not by 3 individuals, Eugene, but by the Circuit Court. As a legal precedential matter, one could well argue as Alan does that the substantive merits of the decision by 9th Circuit has been called into question by other decisions at the Supreme Court. The judge chose to take a narrower view and to read a reported case rather than tea leaves. But, if the judge had gone the other way, and noted that there was no binding precedent in the Circuit and cited the information cited by Alan, one could well accuse the judge of engaging in untoward speculation based not on law but on personality -- the sort of things academics and advocates are to do. The 9th circuit is clearly not bound in a mandatory sense by the prior panel's decision now -- though it too could give the prior decision great weight under stare decisis. I probably would. But absent an infirmity in some prudential matter again, I expect this one will result in a decision. Steve On Sep 14, 2005, at 5:15 PM, A.E. Brownstein wrote: I'm not sure Steve's right. There are two things the Ninth Circuit knows now that it did not know when it decided the Newdow case. First, it knows that Newdow was unable to persuade O'Connor on the merits. How many government display or prayer cases get struck down on establishment clause grounds without O'Connor at least concurring with the decision? 2. If Breyer's opinion in Van Orden means what I think it means -- which is that Breyer is very unlikely to do anything that substantially disturbs the status quo with regard to government sponsored religious messages, prayers, or displays -- then Newdow won't be able to get Breyer to vote for him either. -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ "There are obviously two educations. One should teach us how to make a living and the other how to live." James Truslow Adams |
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