And I STILL say that's a dangling participle.
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The 6th Cir has been busy with the prison provisions of RLUIPA this last week. In addition to finding congressional power under the Spending Clause in the case Derek mentioned, in Hoevenaar, earlier in the week, the Court applied the RLUIPA prison provisions and engaged in the sort of deferential
AP is reporting (as a senator noted in the
Roberts hearing) that a federal district judge in San Francisco has ruled that the
recital of the Pledge of Allegiance in public schools violates the Establishment
Clause. See http://www.nytimes.com/aponline/national/AP-Pledge-of-Allegiance.html.
I too am unconvinced. If the Court reverses a lower court, it says it was
wrong for the lower court to have reached the merits. Treating a decision
that wrongly reached the merits as BINDING seems fishy, at best. Guess
I'll have to look up the lower court law on prudential reversals.
David B.
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
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
Judge Karlton reasons that there was Article III jurisdiction in the earlier
case, just not prudential standing. He then reasons that the prior Ninth
Circuit opinion remains good law except on the issue on which it was
reversed by the Supreme Court, namely prudential standing. He notes that the
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
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
Title: Message
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
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
Severl folks in this thread are writing as if there
is some inherent, or consistent, "right" answer to the question of whether the
CTA9 merits decision in Newdow is "binding"on district courts
"within" that circuit -- or, presumably, on future Ninth Circuit panels -- and
whether it makes a
The District Court opinion did not identify a Ninth Circuit rule of
precedent on this issue and seemed to be discussing the question as a
matter of general law. I don't know whether the kind of rule Marty
describes exists here.
I think Justice Steven's opinion in Newdow reads very much like the
Perhaps the real explanation for the district judge's statement about being bound is that he wanted to do the right thing, but needed to place the blame elsewhere. Even life tenure doesn't solve all problems.
Art Spitzer
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Why is it inconsistent? Assume a court of
appeals that, after briefing and argument, carefully considers the merits
question in case A and holds X. The judgmentin case A is
not binding on lower courts and future panels dealing with different
parties. Nor does the judgment have res judicata
I think the best explanation for the
district judges decision to rely on the 9th Circuit opinion is
his own (remarkably candid) explanation. It appears in fn22, at the very
end of the opinion. For convenience, Ive cut and pasted it below:
22 This court would be less than
candid if it
I agree with Anthony that fear of McCreary
County likely led the court to take refuge in the court of appeals' prior
decision in Newdow. But perhaps the district court need not have
worried about applying McCreary and van Orden, or any of the
other difficult-to-reconcile decisions of the
If that was the judge's reasoning, then regardless of whether
hisultimaterulingwas legally right or wrong, he doesn't
understand his job. Judges aren't supposed to rule based one what they
think is the right thing or the wrong thing. That's what legislators
do. Judges are supposed to rule
Brad assumes that when I said the judge "wanted to do the right thing," I meant the politically right thing or the the right thing by his personal lights. That's not at all what I meant, and I would agree with him that a judge is not supposed to follow such a course.
What I meant was that the
On Wed, 14 Sep 2005, Marty Lederman wrote:
Why is it inconsistent? Assume a court of appeals that, after briefing
and argument, carefully considers the merits question in case A and
holds X. The judgment in case A is not binding on lower courts and
future panels dealing with different
I appreciate Art's clarification of what he meant. He's
correct that I understood his saying the judge "wanted to do the right thing" as
meaning that judge was acting based on his own understanding of right and wrong
as opposed to what the law reads.
I would think, though, that it would not
Let me recommend Howard Bashman's post on the precedent issue at How
Appealing, http://legalaffairs.org/howappealing/. (Scroll down to 8:01 pm
9/14/05 post.) He presents arguments for the following conclusion:
In holding that the Ninth Circuit's Pledge of Allegiance ruling, even after
being
Simply on the predictive issue: (1) Does the Ninth Circuit have a
related cases rule, and (2) if so, would the appeal of this
decision fall within the rule?
- Original Message -
From: Scarberry, Mark [EMAIL PROTECTED]
Date: Wednesday, September 14, 2005 11:12 pm
Subject: RE: New Pledge
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