The case that I just summarized, U.S. v. Parker (10th Cir. 2004) was decided, at least in part, because existing precedents of the 10th Circuit held that the Second Amendment is a collective right. I have a couple of questions.
1. The 9th Circuit operates on a similar principle, requiring an en banc decision to overturn an existing precedent. Do all federal circuits operate by this same rule? Or are the rules different in different circuits?
2. If the rules are the same in all circuits, whence comes this rule? Is it statutory? Is it tradition? Does a federal judicial conference make up the rules?
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In the Ninth, anyway, it's a circuit rule... one adopted by the circuit itself. The rules of general applicability are the Fed Rules of Appellate Procedure, drafted by some manner of conference, and approved by the Supremes. Then there are also circuit rules, which vary all over the place. In the Ninth, for instance, an "en banc" is not the entire circuit bench (21 judges, last I checked), but ten judges from among them, randomly chosen. In the Sixth, I am told, the parties exchange some manner of draft briefs, and only then designate the record (in every other court I've been in, you designate the record first and there are no draft briefs).
I find the proliferation of local rules (federal and state) a phenomenon of the last 25 years, and quite annoying. Local rules for district court, locals for each fed. ct. of appeals, local rules for each county.
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