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February 10, 2009

Judges Behaving Badly

I've mentioned before how much it tickles me when judges, especially circuit court judges who should know better, go after each other in decisions. Chief Judge Kozinski of the Ninth Circuit (who is as funny in person as he is in writing) was in fine form today with this dissent from a "preposterous" opinion by Judge Reinhardt:

Worse still, after huffing and puffing for 11 hefty paragraphs and 12 chubby footnotes trying to explain why the district court erred at all, the majority concludes in a single opaque sentence that the error is “plain.” Just how plain can this error be when the majority has to struggle so long and hard to find any error at all? After complaining bitterly about pointyheaded judges who “slic[e] ever finer and finer distinctions whose practical consequences are seemingly minuscule, if not microscopic,” maj. op. at 1602-03, my colleagues pull out a scalpel of their own and proceed to engage in the same exercise, so that “our standards of review continue to multiply, the relationships between them growing more obscure with each iteration.” Id. at 1603.

Before reading today’s opinion, no one could have guessed its outcome and methodology. Saying that the error is plain eviscerates the “plain” part of the plain error standard. If this is plain error, no error isn’t.

The case, which was about a jury determination that a person was an Indian, is here (PDF).


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posted by Gabriel Malor at 11:07 PM

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