Re: New Pledge of Allegiance Case, and precential effect of Ninth Cir cuit's earlier Newdow decision

[Steven Jamar]

I agree he should not have said he was bound by the Circuit.  But, and here is where we disagree, I guess, I don't see the issue as a tabula rasa -- the 9th Circuit has spoken directly on this exact issue and I would respect that and not easily decide it as if it were a completely new issue.  To do otherwise calls to mind the New Yorker cartoon with a judge handing a decision over the bench to a litigant's lawyer while the judge says "Of course, that's just an opinion." Steve On Sep 14, 2005, at 5:58 PM, Volokh, Eugene wrote: As a legal procedural matter, the decision was by the circuit court; but I think we agree that, as a legal procedural matter, a Supreme Court decision that says the Ninth Circuit shouldn't have reached the merits keeps the Ninth Circuit decision from being binding.   I had thought that Steve's argument was about practical prediction, not technical legal procedure.  And if you're going to be making practical predictions, I don't think the "decision was not by 3 individuals" argument helps.   Seems to me that the judge should have made his own decision on the merits, rather than saying that he was bound by the Circuit.   Eugene --  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/ "Any intelligent fool can make things bigger, more complex, and more violent.  It takes a touch of genius - and a lot of courage - to move in the opposite direction." Albert Einstein

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