9th Circuit Day, Part II
9th Circuit Day made law.com via analysis of fajita-gate's possible effects on municipality liability for off-duty employee conduct.
Or, more accurately, 9th Circuit Day made law.com via analysis of the Judges' behavior at oral argument in fajita-gate. (You can find a better recap of the argument and issue over at law.com, along with a pithy Noonan SFPD-as-buldogs-metaphor and a jab at Bybee's torture politics).
This 1L wants to know: beyond cooler-chat and bathroom reading, how valid are inferences drawn from judges' reactions to and questions during oral argument? I mean, really. Is it realistic to try to read the transcript like tea leaves? Or is it just too tempting to pass up the opportunity speculate?
As one rather clever Property professor recently quipped, "If you get no questions, either things are going really, really well, or really really poorly. And either way, you'll soon be drinking heavily."
Labels: Law School
posted by Patrick Bageant at 11:05 AM
7 Comments:
. . . . if you haven't been already.
In other Boalt-related news, the caption of this photo should read: "Mayor Tom Bates speaks to Boalt Hall students on development plans for Downtown Berkeley while students surf the internet on their laptops."
Now back to your regularly scheduled programming...
To answer your question- it definitely is valid to draw inferences from judges' comments during oral arguments. It can be an excellent predictor of how they're thinking on the issues. I clerked for the 9th, and I know my judge didn't hide the ball during questioning- you could easily tell how he was leaning from his comments/questions. I don't think they all are like that, but I certainly don't think it's tea-leaf reading.
I also clerked for the 9th, and I think anon 3:30 is mostly right but a bit simplified. I think many of the judges try to ask both sides good questions to challenge weaknesses in their arguments. I think the best way to predict what the judges are thinking is how they talk to each other on the bench--if they interrupt each other's questions or rephrase them for the attorney.
E.g., by rephrasing, judges show ways they think the attorney's argument could be made better?
That was the impression I got from their treatment of the fajita-gate appellant's attorney. It seemed (to little, uninformed me) like one of the judges was almost showing the lawyer a theory for his case.
It's not like I studied up on the briefs beforehand, though, so I probably missed the point entirely, but that's what I felt like I was seeing.
Patrick: Yes.
This just in, for those of you still playing along at home.
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