Thursday, January 20, 2022

You don't see this every day!

Please read this 9th Circuit 2d Amendment opinion here in which Judge VanDyke pens the opinion, Judge Kleinfeld writes a concurrence (putting citations in footnotes a la Bryan Garner), and then Judge VanDyke also writes a concurring opinion with an alternative draft opinion, premised on the likelihood of an en banc challenge. And note the tone of the writing (especially the footnotes). Definitely not like anything encountered in law school casebooks. Many, many choice quotes...

  • "Neither pandemic nor even war wipes away the Constitution."
  • "I agree wholeheartedly with the majority opinion, which is not terribly surprising since I wrote it."
  • "I figure there is no reason why I shouldn’t write an alternative draft opinion that will apply our test in a way more to the liking of the majority of our court. That way I can demonstrate just how easy it is to reach any desired conclusion under our current framework, and the majority of our court can get a jumpstart on calling this case en banc. Sort of a win-win for everyone. To better explain the reasoning and assumptions behind this type of analysis, my “alternative” draft below will contain footnotes that offer further elaboration (think of them as “thought-bubbles”)."

See in The Recorder: 'You're Welcome': 9th Circuit Judge Writes Alternative Opinion for Ruling on COVID Gun Shop Closures -- Judge Lawrence VanDyke predicted the case alleging Second Amendment violations will be heard by the full court and wrote an "alternative draft opinion."

The MetNews has an article about this (VanDyke Writes for Majority, Spoofs Opinion Arriving at Contrary Result) here, concluding: 
VanDyke has conceivably devised a new technique: the author of a majority opinion penning what amounts to a parodic dissent.