Monday, March 12, 2007

First Star I See Tonight

Musing 1: From Berkey Photo: "The cryptic Alcoa opinion [is] a litigant's wishing well, into which, it sometimes seems, one may peer and find nearly anything he wishes."

I love the phrase "litigant's wishing well." [But do people actually peer into wishing wells??]

Musing 2: I posed this challenge earlier today to myself, and now to you readers: name 3 right & good copyright decisions from the Ninth Circuit Court of Appeals. Good luck. The most anyone I queried could think of was two. The list of opinions with atrocious & muddled reasoning on the other hand...

Musing 2.1: Why does the Ninth Circuit at times underwhelm? It's the circuit that encompasses the most people, the most dynamic industries - and yet, I can't think of a Judge Hand (notwithstanding Alcoa, ugh) or Judge Friendly. Maybe such a jurist is still in the making, since the West has only soared in the last 75 years or so. Any commenter-submitted greats, and some particularly good cases of theirs?

Musing 2.11: The California Supreme Court has had some fantastic jurists. It's a shame our studies don't bring us into contact with them as much.

Musing 3: Ah, spring evenings. Telegraph Av. finally quiets down, the ocean breeze drifts in [a westward-window is wonderful in Oakland] - perfect.

5 Comments:

Anonymous Anonymous said...

Re: 9C. Disagree. For decades, Browning and Reinhardt carried the liberal torch in advancing the law on crim pro, voting rights, immigrations, and gov benefits. Marsha Berzon is admirably continuing the tradition. In the decade after the Democratic revolution that begins Nov of 2008, their reversals will turn into opinions and their dissents into majorities on the High Court.

If the GOP is you flavor, Kozinski joins the elite crew of Posner and Easterbook as "Judges who'd be on SCOTUS by now if it weren't for the fact that they're more intelligent than conservative." We had Kennedy for a while, maybe not brilliant, but as close to a perceptive centrist as you'll find on the Court now. No one can argue with John Noonan's brilliance. And of course, Willie Fletcher is one of the great procedural scholars of his generation. Seems like the 9C holds up pretty well. I'm not sure what other Circuit evinces such firepower from the right and the left.

3/12/2007 11:29 PM  
Blogger Tom Fletcher said...

11:29... those sound nice... but I see no cites.

As a recent example, J. W. Fletcher's en banc opinion in Yahoo! is a mess. If you read just his opinion, I think you can tease out a sensible application of standing and ripeness. Too bad the panel splintered in too many fractions to recount in one paragraph, ending up with the ripeness opinion being rejected by the majority, but necessary to the holding. J. Fletch has a nice opinion on mootness in Gator.com also - too bad it's a dissent.

You describe the Reinhardt, Browning, & Berzon tradition as "admirable". I fear you find the results admirable, but I was concerned in this post with the reasoning, not the results. How does the reasoning hold up?

Kozinski's clever no doubt, but I've read some terrible opinions of his too. A foray of his into the district courts produced In re Peregrine Entm't, generously, an unmitigated disaster (overruled some years later by the Ninth Circuit - a point for them).

Re: Noonan. Perhaps I'm a no one. I'm unfamiliar with his jurisprudence. My only encounter with him was Ninth Circuit day my 1L year when his gargoyle-like transformation from stone-faced silence to roaring interrogator reduced counsel to tears. So please, explain his brilliance.

I will backtrack somewhat. Judge Tashima's work creating the Rutter Guide was heroic. I'm not acquainted with his judging, but that treatise is worth every page.

Re: 2008. What decisiions do you think will change after 2008? I'm afraid all the AEDPA decisions will remain reversals until Congress changes its stupid law (unlikelly). I'm unfamiliar with the other areas of law you talk about, but I'm curious to hear more.

3/12/2007 11:47 PM  
Blogger Max Power said...

Tom, your 9th Circuit criticisms are awfully presumptuous, and I just do not agree.

First off, to say there isn't currently a Hand or Friendly is ridiculous, considering that you can count on one hand the number of judges of that stature throughout the entire history of this country.

Second, in all likelihood, all that you've read of Hand and Friendly are those opinions that have withstood the test of time. No doubt they each wrote a bunch of stinkers, but those don't end up in the textbooks, do they?

Third, you are totally underestimating several current 9th Circuit judges. No, none of them are perfect (but I'm sure neither were Hand and Friendly). But judges like Fletcher (both of them), Browning, Kozinski and others deserve far more credit than you give them. Kozinski--no matter what you may think of his politics, though they are far less conservative than the general perception--will especially be read long after he is gone.

3/13/2007 11:55 AM  
Blogger Tom Fletcher said...

Max, I'm open to your argument - I said the Ninth's great jurists might still be in the making. I think you confirm my point by only listing active judges.

However... still no cites. I remember reading Kozinski's trailer park-takings case. I thought that was good. I'm totally unfamiliar with anything Browning has written; ditto for B. Fletch. I just haven't read much from the Ninth that blows me away, and lots that looks really bad (esp. in copyright, which is what I was thinking about when I wrote this). If you can point me to a few beautifully reasoned Ninth Circuit opinions, I'd be thrilled.

3/13/2007 12:17 PM  
Anonymous Anonymous said...

First, I have no intention of giving you cites. That would require research, and that would require effort, and well I needn't even finish the thought. That said, I think your methodology here is pretty suspect. All I know of Hand and Friendly is the odd opinion I've come across in my text book, and I suspect that the same is true of you. What you don't read are their clunkers, the cases where they just missed the boat completely. There's at least some anecdotal evidence that suggests that Learned Hand, while a sparkling mind, was not a practical jurist (the saying of the day used to be "Read Learned, but follow Gus" in reference to his less illustrious brother Augustus Hand, who was known, for good or ill, as being a sound and practical, if not flashy, jurist). In short, you've picked the best that these jurists have to offer, while ignoring their mistakes, while, on the flipside, you've isolated several 9th cir. justices clunkers while (probably) ignoring their stronger opinions. Either way, I think you've missed a much bigger point; typically, a "landmark opinion" doesn't become a "landmark" until we've had the time to process it, test it out, and see how it works in the real world. Famous footnote four was - well - just a footnote until it was "rediscovered" by John Hart Ely (although some opinions like Brown, or Gideon were "insta-classics" one presumes). That isn't to say that the Ninth Circuit has churned out anything that merits that sort of unadorned praise, but it also means that we probably don't know enough right now to really be sure.

3/13/2007 4:35 PM  

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