Thursday, September 20, 2018

"Courting Change" interactive tool

Today Reuters launched an interactive "tool" that "examines the composition of the federal appellate bench and U.S. President Donald Trump’s impact on the judiciary. ‘Courting Change’ is a deep dive into how Trump’s vow to transform the judiciary is shaping up, and the graphic will evolve over time as new vacancies and appointments come about."

"‘Courting Change’ provides detailed data on each of the 179 active appeals court judges, drills down on Trump’s picks and looks at how the balance of power may begin to shift in some circuits as Trump appoints more judges. It also provides a breakdown of the appeals court judges by gender, age and ethnicity."

You can access the new tool here.

Tuesday, September 18, 2018

Exciting "citing but not citing"

Reader Kent Qian points out this published decision in which 2/8 "cites" an unpublished Court of Appeal opinion that was cited by a federal district court, noting in footnote 5:

Image result for i'm so excited and i just can't hide itPursuant to California Rules of Court, rule 8.1115(a), we do not formally cite to the unpublished Court of Appeal opinion. However, the federal district court – which is not restricted in its use of unpublished California opinions – relied on it. Under  these circumstances, we choose neither to ignore the unpublished opinion nor redact it from our quotation of the federal case which cited it. Nevertheless, we recognize that the California unpublished case is not precedent.
(See related MetNews article here.)

The Recorder has Make Nice to the Court: Tips on How to be Considerate, by Myron Moskovitz, containing appellate briefing suggestions.

Justice Werdegar receives Witkin Medal

Today's DJ reports that Pioneering Justice Kathryn Werdegar awarded Witkin Medal by California Lawyers Association: Former State Supreme Court Justice Praised for being a trailblazer for women.

California Chief Justice Tani G. Cantil-Sakauye, who presented her former colleague with the award, said the Witkin Medal is given to someone whose extraordinary service made a significant impact on “the quality of justice and legal scholarship in our state.” ... Werdegar said receiving the Witkin Medal at the California Lawyers Association’s inaugural convention is something she will always cherish. “That I’m now joining this pantheon of legal personalities is a very humbling experience, and I’m deeply grateful to the California Lawyers Association,” she said.... The former justice shared that she re-activated her State Bar card, after stepping down last August, to help consult on a case before an appellate court. In an interview, she said she was not at liberty to share the name of the case.

Chemerinsky says "Don't split up the 9th Circuit"

In today's DJ Dean Chemerinsky -- calling it a bad idea that won't go away -- presents Don't Split Up The 9th Circuit, The 9th Circuit is functioning fine. Dividing it will cause a host of additional costs and new problems. Regarding the CIRCUIT Act, he writes:
Image result for if it ain't broke
One bill that is very troubling would divide the 9th Circuit into four divisions: Northern (Alaska, Idaho, Montana, Oregon, Eastern Washington and Western Washington); Middle (Eastern California, Northern California, Guam, Hawaii, Nevada and the Northern Mariana Islands), Southern (Arizona, Central California and Northern California), and Circuit (appeals of agency actions, from the Tax Court, appeals from another division if two or more divisions have made a final division, or if another division has denied en banc review). The Circuit division would be comprised of five judges (the chief judge and one chosen randomly from each of the divisions).This is a terrible proposal. Splitting California among different divisions is a recipe for disaster. The law will be different within California if the courts disagree. One division might strike down a state statute, while the other upheld it. A key reason why splitting the 9th Circuit never has happened is that there is not a sensible way to do it. Dividing California among different divisions makes no sense, but California is so large that there is no other way realistically to split the 9th Circuit.Also, this would create a new level of review, with a district court decision being reviewed by the division of the 9th Circuit, then by the judges en banc within that division, and then by the Circuit division. The current en banc review by 11 judges would be replaced by review by five judges. Adding another level of appellate review is unnecessary and wasteful for the parties and the court.

Monday, September 17, 2018

House of Reps Judiciary Committee 9th Cir. hearings page

For related background to the CIRCUIT Act see Bringing Justice Closer to the People:

The hearing will examine the structure and the caseload of the U.S. Court of Appeals for the Ninth Circuit to determine if the federal judiciary and the American people would be better served by splitting the Ninth Circuit.  The Ninth Circuit is the largest of the thirteen courts of appeals, covering nine states and two territories.  There are currently 29 judges on the Ninth Circuit and the Administrative Office of the Courts has recommended adding five more judges in response to the workload.
House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Courts, Intellectual Property, and the Internet Subcommittee Chairman Darrel Issa (R-Calif.) issued the following statement in advance of this hearing:
“This week the IP Subcommittee welcomes several distinguished legal professionals, including three justices from the Ninth Circuit, to examine the challenges faced by the current Ninth Circuit and how best to address these issues to ensure our federal judiciary is functioning in the fairest and most efficient manner for the citizens it serves.”



Honorable Sidney Thomas Chief Circuit JudgeUnited States Court of Appeals for the Ninth Circuit
    Honorable Carlos Bea Circuit JudgeUnited States Court of Appeals for the Ninth Circuit
      Honorable Alex Kozinski Circuit JudgeUnited States Court of Appeals for the Ninth Circuit
        Professor John Eastman Dale E. Fowler School of LawChapman University
        Professor Brian Fitzpatrick ProfessorVanderbilt University Law School

        Friday, September 14, 2018

        Good reading & interesting issues

        Image result for hamletHere's a great opening from Justice Beds:
        Hamlet included “the law’s delay” on his list of life’s burdens. The freeway accident underlying this lawsuit occurred over 10 years ago, and the parties to this appeal, Mayra Alvarado, her son, and the California Highway Patrol, are still disputing whether the CHP bears some responsibility for it. Nor is it likely that this is the end. This case may well be put once more before the California Supreme Court, as it was in 2013.

        If you're looking for some meaty appellate questions and do criminal work, check out this one here, which Professor Martin blawgs about here.

        Also of interest in today's DJ is Howard Miller's Law Risk: Past is Prologue about how the law is changing, and his clerkship with Justice Traynor.

        News of note

        Two 9th Circuit articles in today's DJ. First, House Republicans Propose 9th Circuit Restructure Instead of Full Split and second, Senate Committee Advances Trump Nominee to 9th Circuit, about Idaho attorney Ryan Nelson.

        In New State Bar Chair, Trustees Sworn in, the DJ reports:
        Image result for bad news“Let me just say flatly, the State Bar needs a dues increase,” Cantil-Sakauye said, drawing applause from the crowd. “Now, the real question is, how much?” she added. Annual dues are currently $315, an amount that has largely remained flat for two decades. 

        Thursday, September 13, 2018

        The future of certified appellate specialization?

        Image result for isn't that specialThe State Bar continues to self-analyze its programs and is pondering the future of the California Board of Legal Specialization, which was established in 1996, and currently certifies specialists in 11 areas. Is certification a public protection function that increases attorney competence? Or is it an associational activity for attorney marketing? Should the State Bar's certifications be discontinued or outsourced? The CBLS has some Bar staffers, but most work is done by volunteers. Indeed, the 114 CBLS volunteers comprise about a third of all State Bar volunteers. The Bar is considering 3 options:
        1. Eliminate certification for legal specialization
        2. Contract out the entire function
        3. Retain State Bar specialization but streamline the process.
        See this report here.
        Interesting stats: About 5,150 California attorneys are certified by the CBLS. Given the 168,746 active California lawyers, this is 3%
        There are 316 certified appellate specialists (Cf. there are 35 Admiralty & Maritime specialists and 1,423 Workers' Comp specialists).

        [Update: The Board opted to retain State Bar Specialization but "streamline" administration of the program. So stay tuned for what this means...]

        Wednesday, September 12, 2018

        More on monkeying with the 9th

        Image result for 9th circuitThe Recorder reports House Committee to Take Up Measure to Reconfigure the Ninth Circuit: The House Judiciary Committee is set to consider Rep. Darrell Issa's proposal to divide the nation's largest circuit court into three regional divisions and one circuit-wide division at a markup hearing Thursday morning.

        The bill, introduced Monday by Rep. Darrell Issa, proposes dividing the Ninth Circuit into three regionally based divisions—a Northern Division composed of the district courts in Alaska, Idaho, Montana, Oregon and Washington’s Eastern and Western districts of Washington; a Middle Division made up of the courts in Guam, Hawaii, Nevada and the Northern Mariana Islands, as well as California’s Eastern and Northern districts; and a Southern Division including Arizona and the Southern and Central districts of California.
        The bill, dubbed the ‘‘Court Imbalance Restructure Concerning Updates to Impacted Tribunals Act of 2018″ or CIRCUIT Act, also proposes an additional circuit-wide division made up of the chief judge and four judges from each of the regional divisions chosen at random that would hear tax cases, appeals of final agency actions, and cases where two of the regional divisions had split on an issue. Issa’s bill would also add five additional active judgeships to the circuit, raising the total to 34. 

        CLA Litigation Section Update now online!




        Litigation Section

        Litigation Update For September

        Tuesday, September 11, 2018

        A Portrait of Asian Americans in the Law

        LACBA and a host of other SoCal bar associations are presenting a program by Justice Goodwin Liu and Professor Ajay Mehrotra on Asian Americans in the Law on September 26 at 7:00, at LACBA HQ (1055 W. 7th St., Ste 2700). $25 for 1 hour of Elimination of Bias credit. Register at

        FBA's Annual Chemerinsky lecture Oct. 4

        Image result for federal bar association los angelesANNUAL SUPREME COURT REVIEW
        October 4, 2018 - 12:00 p.m. - 1:30 p.m. (Registration at 11:30)
        Location: The Biltmore (506 S. Grand Ave., Los Angeles)
        United States Supreme Court Review
        Featuring Dean Erwin Chemerinsky
        University of California, Berkeley School of Law

        Details here.
        Image result for chemerinsky