Majority opinions are hardly sitting ducks for the criticism dissentals may heap on them. If a panel majority finds that a dissental scores some valid points, it can modify its opinion to eliminate the problem, something that happens regularly in the Ninth Circuit. Indeed, fear that internal criticisms will be taken public often causes judges to moderate outlier opinions so as to present a smaller target for public criticism and possible certiorari. One of us (yes, the hot one) is even aware of a case where the panel withdrew its opinion and reversed the result, after winning the en banc vote, in the teeth of a stinging dissental.
— Chief Judge Alex Kozinski (9th Cir.) and his former law clerk, James Burnham of Jones Day, in a Yale Law Journal online essay entitled I Say Dissental, You Say Concurral (defending the practice of filing a dissental, aka dissenting from the denial of rehearing en banc).
(Additional discussion, after the jump.)
This part of the quote jumped out at me:
One of us (yes, the hot one) is even aware of a case where the panel withdrew its opinion and reversed the result, after winning the en banc vote, in the teeth of a stinging dissental.
I chuckled at the sly parenthetical reference to “the hot one.” That’s clearly a robe-swish to Chief Judge Kozinski’s status as the reigning Male Superhottie of the Federal Judiciary. In fairness to Judge Kozinski’s co-author, however, James Burnham is pretty cute too. See also Burnham’s wedding photo (when he and his lovely bride, Emma Mittelstaedt, made the pages of Legal Eagle Wedding Watch).
I was also intrigued by the blind item for appellate-law nerds, namely, a case in which a three-judge panel essentially reversed itself after getting a benchslapping. Anyone care to provide a cite to the opinion (perhaps in the comments)?
Here’s a good summary of the essay in which the quotation appears:
Increasing numbers of circuit judges are writing dissents from, and concurrences in, orders denying rehearing en banc—colloquially known as dissentals and concurrals. Not everyone is happy about this practice, and some judges have lamented their proliferation. The authors here argue that this has become an entrenched feature of the federal appellate process, and it’s a good thing too.
I might be biased — my former boss, Judge Diarmuid O’Scannlain of the Ninth Circuit, is fond of (and talented at) writing dissentals — but I found Kozinski and Burnham’s argument very persuasive. Read it in full here.