Judge Kozinski Is Disagreeable

Two weeks ago, my legal analysis, research, and writing class learned about different kinds of judicial opinions: majority opinions, dissenting opinions, concurring opinions, plurality opinions, per curiam opinions, &c. When reading the decision(s) of a multi-judge court, the importance of these various sorts of opinions is not always readily understandable. Why would a judge concur? What’s the point of a dissent?

Well, Judge Kozinski just gave me something new to add to next year’s class. But before we get to that, here’s the opinion lineup from last week’s Garfias-Rodriguez v. Holder from the en banc Ninth Circuit:


Yikes. Six separate opinions. A “partial concurrence and partial dissent.” The Court describes Judge Kozinski’s opinion as a concurrence, but that’s not what he calls it:

Ah yes, the traditional “disagreeing with everyone” and yet still “concurring” opinion. It’s colorful language, but also a good example of how a concurrence doesn’t necessarily mean that the judge agrees with everything (or anything) the majority had to say in reaching the agreed-upon result.



Second Circuit Strikes Down DOMA — Initial Thoughts

It’s now already old news** on the interwebs, but the Second Circuit Court of Appeals (in a 2-1 decision) struck down the Defense of Marriage Act. (Actually, in fairness, I should say that the Second Circuit upheld the District Court’s (Judge Jones) decision striking down DOMA, as previously covered here.)

This is an important decision for a number of reasons. First, this case involved an actual plaintiff, in an actual marriage, who had suffered actual financial harm because of DOMA following the death of her wife. Under state law, the plaintiff was married. But DOMA rejected federal recognition of that marriage, and so the plaintiff was required to pay more than $300,000 in federal estate taxes she would not have paid had she been married to a man. So this is obviously a win for her. Congratulations to her and her lawyers.

Second, the Court of Appeals applied a heightened level of scrutiny in striking down DOMA. Continue reading

Statutory Interpretation and the Infield Fly Rule

If you’re a baseball fan, you’ve heard about the controversial call in last week’s NL Wild Card single-game playoff. The Cardinals beat the Braves 6-3 in a game that featured an infield fly call that went against the Braves.

Everyone seems to think it was an awful call. I don’t. In fact, it seemed totally fine to me. Here’s why: Continue reading

“I’m Back”

Okay, welcome back. I have nothing particular to write about, other than to say “I’m back.” And yes, it is a big deal.


Also, I should add that despite all my contrarianism, it looks like Chief Justice Roberts really did switch his vote. Oh well. I guess sometimes the cloak-and-dagger explanation is actually the right explanation.