The nostra sponte en banc poll, predicated on the rationale set forth in the dissent, did not succeed. The majority opinion therefore stands.I was led to Judge Pooler's concurrence in denial of en banc rehearing by a link at How Appealing, where Mr. Bashman was struck by these remarks:
Opinions dissenting from denial of rehearing en banc2 are not uncommon in this Circuit. They are nonetheless oddities. When such an opinion is filed, there is an extant panel decision resolving the appeal. The active judges declined to revisit that decision en banc. The panel decision is therefore the Court's decision. Other judges may have views on the matter, but the case is not before them, and what they may say about it has as much force of law as if those views were published in a letter to the editor of their favorite local newspaper.No, tell us what you really think, Judge Pooler -- don't pull your punches!
Yet the unsuccessful request for an en banc rehearing becomes an occasion for any active judge who disagrees with the panel to express a view on the case even though not called upon to decide it. By employing the simple tactic of calling for an en banc poll, active judges provide themselves with an opportunity to opine on a case that was never before them. This amounts to an exercise in free speech rather than an exercise of any judicial function.
... So in oral argument, do I venture "vostre sponte," or stick with "on your own motion"? That's an easy call.
It's a little scary how much we're reading the same things on the net. I almost posted about this but got caught up in noting that Yoo's brief had cited Youngstown.
ReplyDeleteI can say with almost perfect confidence we're reading different books.
Right? You're not reading Reporting at Wit's End, are you? (I have the sense you read far more philosophy and European history than I do, and I read more New Yorker nonfiction, southern history, and perhaps modernist literary fiction than you. But I'm not sure)
My grad work was in English modernism, but now that I'm a 40-year-old lawyer/parent, reading literature is Hard and requires hours of concentration, which are few. History is more like watching TV. I keep meaning to disappear for 72 hours and get at least most of the way through Gaddis's JR.
ReplyDeleteBut tell us about your Reporting book sometime, if you get a minute.
The 'your' form would be *vestra* sponte.
ReplyDelete"Vestra" not "vostra." My French is a poor guide to Latin. Thanks so much!
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