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 rehear the case en banc is also not that helpful, since in practice many votes against a rehearing aren't really votes on the merits -- the judges might just think that, like 99+% of circuit cases, this one doesn't deserve the time of 11 judges, and they might figure that the Court made this mess and should therefore clean it up. So practically speaking I doubt that the earlier panel decision is much of an indication at all of what the 9th Circuit will do, even setting aside the possibility of changed minds or new appointments.
Eugene Steve Jamar writes: 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 authority -- the earlier 9th Circuit decision. It may not be mandatory authority, but it is just about the best indication one can find as to what the 9th Circuit will do. Of course it may change its mind or judges may have left and been appointed and so on and that could change the result. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar "Nothing that is worth anything can be achieved in a lifetime; therefore we must be saved by hope." Reinhold Neibuhr _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.