I'm from Missouri

This site is named for the famous statement of US Congressman Willard Duncan Vandiver from Missouri : "I`m from Missouri -- you'll have to show me." This site is dedicated to skepticism of official dogma in all subjects. Just-so stories are not accepted here. This is a site where controversial subjects such as evolution theory and the Holocaust may be freely debated.

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Location: Los Angeles, California, United States

My biggest motivation for creating my own blogs was to avoid the arbitrary censorship practiced by other blogs and various other Internet forums. Censorship will be avoided in my blogs -- there will be no deletion of comments, no closing of comment threads, no holding up of comments for moderation, and no commenter registration hassles. Comments containing nothing but insults and/or ad hominem attacks are discouraged. My non-response to a particular comment should not be interpreted as agreement, approval, or inability to answer.

Thursday, April 26, 2007

Why so few court citations of blogs?

Originally I was somewhat surprised that court opinions have begun to cite blogs -- now I am surprised that there have been so few court citations of blogs. In fact, they are almost scarcer than hens' teeth. A recent survey (Aug.-06-06) listed only 27 court opinions that cited blogs, and all but 8 of these court opinions cited just one blog, Sentencing Law and Policy. In contrast to just a handful of citations of blogs, the courts have cited thousands of law journal articles over the past several decades -- see this post and this post. Of course, blogs are relatively new, but they have been around for a few years. Also, there have been a few hundred citations of blogs in law journal articles.

Here are some things that are related to court opinions' citations of blogs:
.
Courts' acceptance and adoption of Internet technology: I don't see this as a potential problem area that might be inhibiting court citations of blogs. Many courts -- particularly big, important courts -- are taking full advantage of Internet technology, e.g., many courts instantly post opinions on-line and even allow litigants to file and serve court documents electronically. Also, the frequent citation of law journal articles set a precedent for citations of sources other than court opinions, thus setting a precedent for the citation of blogs.

The great increase in numbers of court case precedents has reduced the need to cite other sources: Points of law in court opinions today are often followed by long strings of court case precedents. I assert that the great increase in the numbers of court case precedents over the years has greatly reduced the need to cite other sources, including blogs and law journal articles, and I think that this helps to explain the great decline in the frequency of court citations of law journal articles. Other reasons have been given for the decline in the frequency of citation of law journal articles, but I dispute these reasons: (1) law journals have become more interdisciplinary; (2) law journals articles have become more theoretical as opposed to dealing with actual cases; and (3) the Internet has made it easier for judges and court staffs to do their own research rather than depend on law journal article authors to do research for them.

Opportunities for citations of blogs by court opinions: I am not aware of any rule prohibiting litigants from citing blogs in court documents, so I presume that it is common for litigants to include blog citations in their court documents, and so it seems that judges who adopt the reasoning of litigants would tend to cite blogs that were used to support that reasoning. Also, judges and their staffs can do their own Internet searches to find blog material. Judges can also find blog material in law journal articles, which have cited hundreds of blogs.

Court customs and traditions: Of course, court citation of blogs is not a long-established court custom or tradition, but I am not aware of any court rule against court citation of blogs or any organized national effort to discourage court citation of blogs. Decisions on whether or not to cite blogs are basically decisions of individual judges, and I can see no basis for a general collective decision of judges to avoid citing blogs. I do not see this lack of a custom or tradition of citing blogs as a possible explanation for the great scarcity of court citations of blogs, except in regard to the snobbery of judges (I discuss this snobbery factor separately below). Even if, say, 90 percent of judges had a policy against citing blogs, that would not even come close to explaining the great scarcity of court opinions' citations of blogs.

Possible bias or one-sidedness of blogs: The problem of one-sidedness exists to an even greater extent with law journal articles -- which have been cited by the thousands in court opinions over many decades -- because blogs allow (theoretically at least) instant unlimited debate and presentation of differing viewpoints. The more popular blogs -- e.g., the Volokh Conspiracy and Balkinization law blogs -- receive large numbers of visitors and comments and so get a wide range of views on different subjects. This problem of possible one-sidedness can be minimized by a policy of not citing blogs whose bloggers arbitrarily censor comments. IMO a blog that is cited by a court opinion becomes like an official governmental public hearing that must accept all comments -- and when a court cites a blog it is too late to uncensor comments that were censored. Also, severe cyberbullying (e.g., credible threats of physical harm as opposed to just letting off a little steam), which discourages people from blogging and commenting on blogs, needs to be discouraged. Also, if bloggers demand civility from one side, they should also demand it from the other. Anyway, knowing typical judges, I don't think that this censorship issue would be a factor in most judges' decisions on whether or not to cite blogs.

Credentials of bloggers and blog commenters: Because law is a subject which many laypeople are able to discuss intelligently, credentialism is rampant in the law profession and many legal professionals have a jealous disdain of any legal opinion expressed by a layperson (attorneys have told me that judges are prejudiced against pro se litigants). For example, law journal articles -- regardless of their length -- that are written by law students are just called "notes" rather than "articles." Also, it is relatively easy to be self-taught in the law, particularly in a narrow specialty (e.g., I probably became the world's foremost authority on federal issues concerning California's grossly unconstitutional smog impact fee). Even some prison inmates with little formal education have become skilled "jailhouse lawyers." In contrast, I know as an engineer that many engineering subjects cannot be discussed intelligently by people who do not have long formal training in the engineering specialty being discussed (as a mechanical engineer, I am often unable to discuss electrical engineering subjects or even some specialties in mechanical engineering). However, many if not most bloggers on law blogs are law professionals: law professors, attorneys, and maybe even judges. Also, many of the bloggers on other scholarly blogs are professionals in their fields. It is noteworthy that of the few court citations of blogs, many of the citations are of the visitors' comments rather than the original blog articles, even though the visitors are much more likely than the bloggers to be laypeople. In the law, the legal background of a person stating an opinion is usually irrelevant because the opinion can be evaluated on its own merits -- as the saying goes, "you can't judge a book by its cover."

Instability of blogs: Blog articles, their comment threads, and associated URL links are of course subject to deliberate erasure, accidental loss, and alteration, and this instability might be a deterrent to court citations of blogs. However, this instability problem is easily surmountable -- electronic and/or paper copies of this blog material can be added to the court records. The same problem exists with citations of obscure paper documents, which could be hard or impossible to find.

Snobbery and the low prestige of blogs: Snobbery might help explain the low frequency of court citations of blogs. For example, the main law journals (as distinguished from specialized journals) of Ivy League law schools -- particularly the Harvard law school -- have been cited with far higher frequency than other law journals. However, it seems that judges should try to cite the best sources, regardless of the sources' levels of prestige. As the saying goes, a book cannot be judged by its cover, and accordingly a law journal article should not be judged by the title of the law journal. The old adage "it's not what you know, it's who you know" applies with a vengeance in the field of law. Ironically, the reputation of journals should be less important -- not more important -- in law than in, say, science and engineering, because errors, flaws, and weaknesses are generally much easier to spot in law journal articles than in scientific or engineering journal articles. In scientific and engineering journal articles, experimental and analytical results would often take too long to reproduce and so the reader is often dependent on the knowledge, carefulness, and honesty of the authors. I have heard of scientific journal articles being exposed as frauds because of fabrication of data, but I have never heard of a law journal article being exposed as a fraud because of fabrication of references. However, a policy against citing blogs would have to be nearly universal among judges in order to explain the great rarity of court opinions' citations of blogs.

Citations of unpublished court opinions vs. citations of blogs: There is a very controversial new national federal court rule authorizing the citation of unpublished court opinions in any federal court, though the individual federal courts have the discretion of not using these unpublished opinions as binding precedent. Some of the criticisms of this new rule are: the case histories given by the unpublished opinions are sketchy or even non-existent; the judges' reasonings are too sketchy; some court cases are not suitable to be precedents; often the opinions' authors themselves do not want the opinions to be cited; many unpublished opinions are written only to satisfy the litigants that there was some reasoning behind the decision; as a result of this rule, sometimes judges will spend more time writing unpublished opinions, increasing court backlogs and taking judges' time away from writing published opinions; judges will stop issuing unpublished opinions in many cases in order to avoid being cited; many unpublished opinions are written by court clerks; there is too big an expansion of citable precedents; it increases the likelihood of conflicts between precedents; and pro se litigants, who often do not have access to the best online legal search engines and who are likely to be unfamiliar with unpublished opinions in particular areas, are at an even greater disadvantage. Etcetera, Etcetera, etcetera. The pros and cons of the new rule are also discussed here and here. There has been a tendency of the courts to expand the kinds of sources that may be cited, e.g., I am confident that the 9th Circuit federal court of appeals once had a rule that no district court opinion -- published or not -- could be cited in any court of the 9th Circuit. Could the practice of citing blogs be any worse than the practice of citing unpublished opinions? After all, many blog articles and their comment threads are often much more thorough than unpublished opinions, since the blog articles are often carefully written and can have dozens or even hundreds of comments, many of them written by very knowledgeable people. Also, blogs, unlike unpublished opinions, are not court precedents. Though this new national court rule allows federal courts to continue treating unpublished opinions as non-binding precedents, a federal court that chooses to disregard an unpublished opinion risks being accused of inconsistency.

Citations of Wikipedia vs. citations of blogs: The courts are now citing Wikipedia as well as citing blogs. It is often assumed that errors in Wikipedia are caused solely by its open editing policy which results in editing by unknowledgeable and biased people, but Wikipedia has a severe censorship problem as well. This censorship problem is even worse in Wikipedia than in blogs because Wikipedia is a single source whereas blogs are multiple sources, i.e., something that is censored on what blog could appear on another blog. A good example of censorship on Wikipedia occurred in the recent effort to add the book "Of People and Pandas" -- the book that Judge Jones ruled could not even be mentioned in public school classrooms -- to the Wikipedia list of "banned books." Favored editors who have hijacked Wikipedia kept insisting that they would not list the book unless a "reliable non-partisan source" could be found that verified that the book was actually banned. That is like trying to find a "reliable non-partisan source" that verifies that bears shit in the woods. The Wikipedia requirement of a "reliable non-partisan source" was obviously intended only for things that are not self-evident or that could not be independently verified. I proposed a compromise of listing the book along with a note that the listing was disputed and links to external websites where the dispute was discussed and debated, but to no avail. Trying to deal with those stubborn jackasses over at Wikipedia is reminiscent of that famous restaurant scene in the movie "Five Easy Pieces". Those lousy jerks over at Wikipedia decided to completely rewrite the whole "banned books" article rather than concede that the Pandas book was banned or even "challenged." The reputation of Wikipedia as a reliable source of information is rapidly going down the tubes -- for example, the history department at Middlebury College has ruled that students may not cite Wikipedia as an authoritative source.

Well, this article was more long-winded than I originally intended it to be, but I wanted to cover all the bases as best I could.

Overall, IMO there does not appear to be any really good reason(s) for the apparent reluctance of judges to cite blogs in their written opinions.

Labels:

20 Comments:

Anonymous Anonymous said...

>>>I am confident that the 9th Circuit federal court of appeals once had a rule that no district court opinion -- published or not -- could be cited in any court of the 9th Circuit.<<<

When the hell was this rule in effect?

Thursday, April 26, 2007 2:41:00 PM  
Anonymous W. Kevin Vicklund said...

I don't know. Larry has never been able to offer any corroborating evidence and is really cagey about when it supposedly was being enforced. I have found no evidence of any such rule - I think Larry misinterpreted another rule.

Thursday, April 26, 2007 2:48:00 PM  
Blogger Larry Fafarman said...

Anonymous said...

>>>>>> I am confident that the 9th Circuit federal court of appeals once had a rule that no district court opinion -- published or not -- could be cited in any court of the 9th Circuit.<

When the hell was this rule in effect? <<<<<

The rule was hell in effect around 1995, when I sued over the smog impact fee. This old rule might never have been posted online and it might be necessary to go to a big law library to find it. I specifically remember the rule because the state of California violated it by attaching a complete federal district court opinion (an unpublished opinion, yet) to its brief that replied to my complaint -- the opinion was from a suit by the attorneys who eventually succeeded in having the smog impact fee overturned in the state courts. I am not surprised that the 9th Circuit had such a rule -- the 9th circuit has been very hardnosed in trying to limit the kinds of authorities that can be cited. The 9th Circuit was one of only four circuits that prohibited citations of unpublished opinions (several other circuits discouraged such citations) and led the fight against the new national court rule authorizing such citations. Fans of Judge Jones and his abominable Kitzmiller decision are of course disturbed by this old rule because it showed the low esteem that the courts have for district court opinions.

Kevin Vicklund said,

>>>>> Larry has never been able to offer any corroborating evidence and is really cagey about when it supposedly was being enforced. <<<<<

No, I have never been cagey about when it was enforced. I do not know when they stopped enforcing it, though.

>>>>> I think Larry misinterpreted another rule. <<<<<

No, Kevin -- I would not make a mistake like that.

Thursday, April 26, 2007 8:25:00 PM  
Anonymous Voice in the Wilderness said...

It is interesting that as an example Larry takes a case where he was laughed out of court.

Friday, April 27, 2007 6:53:00 AM  
Anonymous W. Kevin Vicklund said...

That's odd. I have found numerous examples of district court cases before, during, and after 1995 that cite other district court cases. For example, Bridge v. Vien, 827 F.Supp. 629 (S.D.Cal. 1993 was a case in the Southern District of California in 1993 that cited 2 district court cases - one of which was not even in the same Circuit! The website for the 9th Circuit links to opinions. 1996 is the first year in which there are a lerge number of cases to look at. 20% of those cases cite district court cases not directly related to the case at hand. (Another 20% cite the original district court decisions, but I don't count these). And in 2000, the Central District of California website started linking to decisions. One of the earliest decisions cited several district court cases. One of the cites was of a 1995 Central District case citing another district case. Why, it's almost as if the rule never existed...

I'm sorry, Larry, but in light of the evidence, I'm going to have to conclude that you were at best, misled.

Friday, April 27, 2007 12:17:00 PM  
Anonymous voice in the wilderness said...

> I'm sorry, Larry, but in light of the evidence, I'm going to have to conclude that you were at best, misled. <

You are too charitable.

Friday, April 27, 2007 4:42:00 PM  
Blogger Larry Fafarman said...

Kevin Vicklund said...
>>>>> That's odd. I have found numerous examples of district court cases before, during, and after 1995 that cite other district court cases . . . . .

I'm sorry, Larry, but in light of the evidence, I'm going to have to conclude that you were at best, misled. <<<<<<

As usual Kevin, you are jumping to conclusions. Maybe the rule was usually not enforced because it was so stringent; maybe most people were unaware of the rule; maybe the rule was changed around the time that I filed my lawsuits; maybe I was looking at an old set of rules; who knows. We do know that the 9th Circuit had a rule against citation of unpublished opinions, yet California attached an unpublished opinion to its answer to my complaint against the smog impact fee, and IMO that was a much bigger no-no than citation of a published district court opinion. To me, it is easier to believe that the 9th Circuit had this rule against citing district courts than it is to believe that the Supreme Court approved that stupid new national federal court rule prohibiting federal courts from banning citation of unpublished opinions.

>>>>>> For example, Bridge v. Vien, 827 F.Supp. 629 (S.D.Cal. 1993 was a case in the Southern District of California in 1993 that cited 2 district court cases - one of which was not even in the same Circuit! <<<<<<

Since district court decisions are not binding precedent anywhere, it does not matter whether these cited district court decisions were in the same circuit or not. Also, it is quite common to cite decisions from other circuits.

Voice in the Wilderness driveled,

>>>>>> I'm sorry, Larry, but in light of the evidence, I'm going to have to conclude that you were at best, misled. <

You are too charitable. <<<<<<

As usual, ViW chimes in without giving me a chance to respond.

I am too charitable in not kicking you off this blog permanently.

Saturday, April 28, 2007 10:53:00 AM  
Anonymous Voice in the Wilderness said...

> As usual Kevin, you are jumping to conclusions. <

No. Kevin is noticing that the rule was rarely enforced, if at all. You have dodged the question of when it has been enforced while complaining of others not giving examples - the usual hypocrisy.

> To me, it is easier to believe that the 9th Circuit had this rule against citing district courts than it is to believe that the Supreme Court approved that stupid new national federal court rule prohibiting federal courts from banning citation of unpublished opinions. <

It doesn't matter what an insane man finds "easier to believe". You have pulled something out of your ass again and called it a rule.

> Also, it is quite common to cite decisions from other circuits. <

Even unpublished ones?

> I am too charitable in not kicking you off this blog permanently. <

But then you would be voted out of the Association of Non-Censoring Bloggers, if there were any other members!

Saturday, April 28, 2007 3:04:00 PM  
Blogger Larry Fafarman said...

ViW drivels,
>>>>> Kevin is noticing that the rule was rarely enforced, if at all. You have dodged the question of when it has been enforced while complaining of others not giving examples - the usual hypocrisy. <<<<<<

All I know is that California's answer to my complaint against the smog impact fee did not just cite an unpublished opinion but included a whole darn unpublished opinion as an attachment (and furthermore it was just a district court opinion), even though citation of unpublished opinions was against the rules of the 9th circuit (that attached opinion was the dismissal of the federal-court suit of the attorneys who later won their case against the fee in the state courts). If the citation rules were strictly enforced, then explain how that happened, smartass. Yes, I know what your answer is going to be, dunghill -- there was one set of rules for me and another set of rules for everyone else.

>>>>>> Also, it is quite common to cite decisions from other circuits. <

Even unpublished ones? <<<<<<

I was speaking mostly about published opinions. Anyway, under the new national federal court rule, federal courts cannot ban the citation of any unpublished opinions, including unpublished opinions from other circuits.

>>>>> But then you would be voted out of the Association of Non-Censoring Bloggers, if there were any other members! <<<<<

You ought to be glad that I have the integrity to follow the membership rules.

Saturday, April 28, 2007 3:44:00 PM  
Anonymous Voice in the Wilderness said...

> All I know is that California's answer to my complaint against the smog impact fee did not just cite an unpublished opinion but included a whole darn unpublished opinion as an attachment <

You are trying to weasel out of this. Your complaint was that they were violating the rules. Now you are only saying what they did with no support to your claim that it violated any rule.

> If the citation rules were strictly enforced, then explain how that happened <

You have failed to show any enforcement of that alleged rule anywhere.

> there was one set of rules for me and another set of rules for everyone else. <

No. Anyone presenting such poorly done work would also be laughed out of court, as you were, cretin.

> I was speaking mostly about published opinions. <

When you cited a rule about unpublished ones?

> You ought to be glad that I have the integrity to follow the membership rules. <

When did you gain this integrity? When did (or will) you begin to follow the rules?

Sunday, April 29, 2007 6:23:00 AM  
Blogger Larry Fafarman said...

>>>>> Your complaint was that they were violating the rules. Now you are only saying what they did with no support to your claim that it violated any rule. <<<<<<

California did violate the rule against citation of unpublished opinions (this 9th circuit rule has been overturned by the new national rule allowing citations of unpublished opinions). This rule against citing unpublished opinions is different from the alleged rule against citing district court opinions, some of which are published.

>>>>>> If the citation rules were strictly enforced, then explain how that happened <

You have failed to show any enforcement of that alleged rule anywhere. <<<<<<

We cannot possibly see examples of where the alleged rule was observed or enforced -- we can only see examples of where it was not observed or enforced.

My point was that since the rule against citing unpublished opinions was not observed or enforced in my case, then maybe the alleged rule against citing district court opinions was also not observed or enforced. IMO, violation of the former rule was more serious than violation of the latter, because published district court opinions, unlike unpublished opinions, are usually thorough in presenting the judges' reasoning and the facts of the case. Also, I presented other possible explanations as to why I appear to be wrong about this: maybe the rule changed around the time I sued, maybe I was looking at an old set of rules.

>>>>>> there was one set of rules for me and another set of rules for everyone else. <

No. Anyone presenting such poorly done work would also be laughed out of court, as you were, cretin. <<<<<

The quality of my work had absolutely nothing to do with California's obligation to follow the citation rules in answering my complaint, dunghill.

>>>>>> I was speaking mostly about published opinions. <

When you cited a rule about unpublished ones? <<<<<<

No -- at that point I was citing the alleged rule against citing district court opinions.

>>>>> When did (or will) you begin to follow the rules? <<<<<<

I am following my no-censorship rule right now. It would be much easier for me to simply censor all or some of your comments -- most of which are asinine -- than it is to answer them.

Sunday, April 29, 2007 12:59:00 PM  
Anonymous Voice in the Wilderness said...

> The quality of my work had absolutely nothing to do with California's obligation to follow the citation rules in answering my complaint, dunghill.

You pathetic deluded cretin. You have failed to show that the alleged rule was ever followed.

> at that point I was citing the alleged rule against citing district court opinions. <

"Alleged rule"? Was there a rule or not?

Sunday, April 29, 2007 6:22:00 PM  
Blogger Larry Fafarman said...

>>>>> The quality of my work had absolutely nothing to do with California's obligation to follow the citation rules in answering my complaint, dunghill.

You pathetic deluded cretin. You have failed to show that the alleged rule was ever followed. <<<<<

You stupid fathead, I said that it is not possible to find examples of where the alleged rule against citation of district court opinions was followed -- it is only possible to find examples of where the rule was not followed. Anyway, I was talking here about a different subject: California's failure to follow the rule against citation of unpublished opinions in my particular lawsuit.

>>>>> "Alleged rule"? Was there a rule or not? <<<<<

I called it an "alleged rule" because I have no proof that there was such a rule. Sheeeesh.

Sunday, April 29, 2007 6:44:00 PM  
Anonymous Voice in the Wilderness said...

> I called it an "alleged rule" because I have no proof that there was such a rule. Sheeeesh. <

You cretinous dullard. You are complaining about uneven application of a rule that you say may not have been applied at all and may not even exist!

Monday, April 30, 2007 4:11:00 AM  
Anonymous W. Kevin Vicklund said...

>>>As usual Kevin, you are jumping to conclusions.<<<

As usual, Larry scrambles to cover up his lack of knowledge and lack of evidence by engaging in a series of implausible what-ifs.

>>>Maybe the rule was usually not enforced because it was so stringent;<<<

Or maybe the rule was misinterpreted by an amateur.

>>>maybe most people were unaware of the rule;<<<

"Most people" would have to include the district court judges, and the circuit court judges would have to be complicit in allowing it.

>>>maybe the rule was changed around the time that I filed my lawsuits;<<<

What, they changed it for a month or two before switching back?

>>>maybe I was looking at an old set of rules;<<<

An intriguing possibility, but the rules would have had to be pretty old. Not that this claim helps your legal credibility.

>>>who knows.<<<

The Shadow knows...

But I think the evolution of Larry's claim can be gleaned from his following commentary.

>>>We do know that the 9th Circuit had a rule against citation of unpublished opinions, yet California attached an unpublished opinion to its answer to my complaint against the smog impact fee, and IMO that was a much bigger no-no than citation of a published district court opinion. To me, it is easier to believe that the 9th Circuit had this rule against citing district courts than it is to believe that the Supreme Court approved that stupid new national federal court rule prohibiting federal courts from banning citation of unpublished opinions.<<<

Woah, now, pardner. We don't "know" that at all. The 9th Circuit had a rule prohibiting citation to the courts of the circuit of unpublished decisions by the 9th Circuit Court. The rule said nothing about citation of unpublished district court decisions. Here's the latest version:

CIRCUIT RULE 36-3
CITATION OF UNPUBLISHED DISPOSITIONS OR ORDERS
(a) Not Precedent: Unpublished dispositions and orders of this Court are not
precedent, except when relevant under the doctrine of law of the case or rules of
claim preclusion or issue preclusion.
(b) Citation of Unpublished Dispositions and Orders Issued on or after
January 1, 2007: Unpublished dispositions and orders of this court issued on
or after January 1, 2007 may be cited to the courts of this circuit in accordance
with Fed. R. App. P. 32.1.
(c) Citation of Unpublished Dispositions and Orders Issued before January 1,
2007: Unpublished dispositions and orders of this Court issued before January
1, 2007 may not be cited to the courts of this circuit, except in the following
circumstances.
(i) They may be cited to this Court or to or by any other court in this circuit
when relevant under the doctrine of law of the case or rules of claim
preclusion or issue preclusion.
(ii) They may be cited to this Court or by any other courts in this circuit for
factual purposes, such as to show double jeopardy, sanctionable conduct,
notice, entitlement to attorneys’ fees, or the existence of a related case.
(iii) They may be cited to this Court in a request to publish a disposition or
order made pursuant to Circuit Rule 36-4, or in a petition for panel
rehearing or rehearing en banc, in order to demonstrate the existence of a
conflict among opinions, dispositions, or orders.


Part (b) and the opening of part (c) (to the colon) were added due to the local rules as a result of the new federal rule Larry mentioned. Part (c) is otherwise the same as before, even back to when Larry was flooding the courts with his filings.

Let's break down the relevant part of the rule, clause by clause.

First - "Unpublished dispositions and orders of this Court issued before January
1, 2007 may not be cited to the courts of this circuit" - this applies only to unpublished "opinions" (by 9th Circuit rules, they are not really opinions, but I'll use Larry's terminology from here on to avoid perplexing Larry too much) of the Circuit Court. If the rule was intended to also apply to district opinions, the rule would have been written "Unpublished dispositions and orders of th[e c]ourt[s of this circuit] issued before January
1, 2007 may not be cited to the courts of this circuit" The clear language of the rule states that only unpublished circuit court opinions are subject to this rule. Note that the language also permits citation of unpublished opinions of other circuit courts.

Second - "except in the following
circumstances." Hey, there are exceptions permitted. Even assuming arguendo that the first clause applied to unpublished district court opinions, the State's citation of Ramos v. DMV might fall under one of those exceptions. Let's move on.

Third - "(i) They may be cited to this Court or to or by any other court in this circuit
when relevant under the doctrine of law of the case or rules of claim
preclusion or issue preclusion." - "Law of the case" refers to previous decisions on the case by an appeals court that has remanded the case, which is clearly not an issue here - a district court can't remand to a lower court. Both types of preclusion require the parties to be identical. So this clause, assuming it applies to district court cases, would not provide an exception in Larry's original district court case. (It could in his second - the two types of preclusion are also known as res judicata and collateral estoppel)

Fourth - "(ii) They may be cited to this Court or by any other courts in this circuit for
factual purposes, such as to show double jeopardy, sanctionable conduct,
notice, entitlement to attorneys’ fees, or the existence of a related case." - It's possible that the State cited Ramos as a related case, and included the entire decision because it was unpublished (in fact, such attachment is now required by the new Federal rule). Without a copy of the brief, I can't say for certain, though.

Fifth - "(iii) They may be cited to this Court in a request to publish a disposition or
order made pursuant to Circuit Rule 36-4, or in a petition for panel
rehearing or rehearing en banc, in order to demonstrate the existence of a
conflict among opinions, dispositions, or orders." - Unlikely any of these exceptions would apply.

Looks like most of the exceptions wouldn't apply. In fact, some of the exceptions are non-sensical if applied towards district court decisions. So why did I include it all? To be exhaustive in exploring what the local rules allowed and prohibited.

In any case, based on the knowledge we have, let's construct the likely evolution of Larry's claim that the 9th Circuit once prohibited citation of other district court opinions.

It's 1995. Larry has learned about the Smog Impact Fee, and has decided to fight it. He decides that the federal court system is the correct place to fight it. So he does some research, and gets some conflicting data over which court to file in. So he decides to take the shotgun approach and files in the local district court, the local circuit court, and the federal court of appeals, figurin one of them has to be the right one. Knowing he is a rank amateur, he checks the rules to make sure he properly files in the various courts. In so doing, he runs across LR36.3 and erroneously concludes that it means he can't cite an unpublished district court opinion. So he doesn't bother looking through them when doing his research on court cases. When he files suit, the State responds in part by citing an unpublished district court opinion dealing with the exact same issue. This pisses Larry off to no end, because of his misinterpretation of the rule. But rather than verify whether his interpretation is correct, he assumes the State is violating the rules. His cases are all dismissed, but he bears a bitter hatred toward the system.

Flash forward 10 years. Larry hears about a district case that fits his contrarian views. When the case is decided against his viewpoint, he attacks it with the pent-up venom of 10 years of rejection. His memory of his cases from ten years earlier slightly clouded (not surprising for anyone), he misremembers his original misinterpretation as a bar on all district court opinions. Of course, when pressed to provide details, all he can do is provide hazy recollections of his own cases, because what he thought was true was never true. He can't provide the necessary evidence because it does not exist, and there is evidence contrary to his position.

Monday, April 30, 2007 3:45:00 PM  
Blogger Larry Fafarman said...

Kevin Vicklund, the pettifogger and self-appointed blogosphere goon who takes unfair advantage of my no-censorship policy while going around to other blogs urging the bloggers to censor my comments and the comments of others, strikes again.

>>>>>> The 9th Circuit had a rule prohibiting citation to the courts of the circuit of unpublished decisions by the 9th Circuit Court. The rule said nothing about citation of unpublished district court decisions. <<<<<<

WHAT? You are making this much too complicated. The 9th circuit had a local rule against citing unpublished opinions -- whether from federal district courts, federal appeals courts, in-circuit courts, out-of-circuit courts, state courts, or whatever -- except as provided by the rules of res judicata or collateral estoppel (i.e., in cases involving the same parties). This old rule has now been superseded by a new national rule that prohibits federal courts from banning citation of unpublished opinions. California violated the old rule in my lawsuit by citing (actually attaching) an unpublished opinion in the answer to my complaint. Also, you are here trying to apply the new rules -- not the old rules -- to California's citation of an unpublished opinion.

As for the alleged rule against citation of federal district court opinions, I find it completely plausible that such a rule existed, particularly in a circuit -- the 9th circuit -- that has been very restrictive about citation rules (the 9th circuit led the opposition to the new national rule authorizing citation of unpublished opinions). District court opinions are often the unreviewed opinions of single judges, and in many cases the litigants presented poor arguments. I find this old alleged rule against citing district court opinions to be more believable than the new national rule authorizing citation of unpublished opinions. The only argument I have heard in favor of that new national rule is that the Internet has made it easy to search and retrieve unpublished opinions. That is like arguing that we should all blow our brains out because guns have made suicide easier.

>>>>>> It's 1995. Larry has learned about the Smog Impact Fee, and has decided to fight it. He decides that the federal court system is the correct place to fight it. So he does some research, and gets some conflicting data over which court to file in. So he decides to take the shotgun approach and files in the local district court <<<<<<

It was not a shotgun approach -- I knew I had to sue in federal court because one of the defendants was the US EPA (the other was California). The attorneys who eventually won in the state courts also sued in federal district court where the suit was dismissed because of the Tax Injunction Act and the 11th Amendment -- and these were bigshot attorneys from big law firms, yet they made the same "mistake" I did (furthermore, they did not need to sue in federal court because there was no federal defendant in their case). However, unlike them, I found a good argument against dismissal -- the precedent of Parden v. Terminal Railway of the Alabama State Docks Dept., which ruled that states lose their immunity in federal court when they "leave the sphere that is exclusively [their] own" -- and it was obvious that California had left the sphere that was exclusively its own when it enacted the smog impact fee (actually, my finding this precedent was a complete fluke -- at the time I knew nothing about doing legal research but I was just thumbing through some Supreme Court volumes in my local library and I just stumbled on this precedent). Plus there was the fact that I was also suing the US EPA, meaning that I had to sue in federal court because there was a federal defendant. It was clearly a federal case -- even a former top administrator of a Calif. auto emissions control agency said that the fee required the approval of the US EPA. And no, I do not need express permission from Congress to sue in federal court. I have repeated these facts many times.

Also, most of your discussion about me is just a fabrication.

Monday, April 30, 2007 5:58:00 PM  
Anonymous Voice in the Wilderness said...

> while going around to other blogs urging the bloggers to censor my comments and the comments of others <

Do you really believe that if you repeat that lie enough anyone will believe you?

> The 9th circuit had a local rule against citing unpublished opinions <

You were calling it an alleged rule. You have failed to cite it. Does it exist?

> As for the alleged rule <

I know. You will call this a different set of circumstances.

> I find it completely plausible that such a rule existed <

Put up or shut up.

> and in many cases the litigants presented poor arguments. <

Such as your own cases.

> The attorneys who eventually won <

Dispite your meddling.

> However, unlike them, I found a good argument against dismissal <

Then why didn't you present it in your suit instead of the crap that you did?

> at the time I knew nothing about doing legal research <

What has changed?

Monday, April 30, 2007 11:10:00 PM  
Blogger Larry Fafarman said...

ViW said,
>>>>>> The 9th circuit had a local rule against citing unpublished opinions <

You were calling it an alleged rule. You have failed to cite it. Does it exist? <<<<<<

No, the "alleged rule" was the one against citing district court opinions.

Tuesday, May 01, 2007 1:26:00 AM  
Anonymous W. Kevin Vicklund said...

The 9th Circuit, in a published opinion, held
that Rule 36-3 only applied to the dispositions of the 9th Circuit Court:

4. We deny Dun & Bradstreet’s Motion to Strike Portions of Renick’s Brief and Excerpts of Record and Request for Sanctions for citing an unpublished order of the District Court for the Southern District of California. Ninth Circuit Rule 36-3 quite clearly prohibits citations only of our unpublished dispositions; it does not apply to unpublished dispositions issued by any other courts within our circuit or elsewhere. See Ninth Cir. R. 36-3.

Friday, May 11, 2007 2:11:00 PM  
Blogger Gunther Eysenbach said...

As to instability, a lot of people (including lawyers, publishers, editors) use WebCite (http://www.webcitation.org), which allows anybody to take a stable snapshot of an URL, which will be permanently preserved (WebCite is a member of the International Internet Preservation Consortium).
Quote from the New York Times:

WebCite used in the legal world

“(…) In a recent letter to The New York Law Journal, Kenneth H. Ryesky, a tax lawyer who teaches at Queens College and Yeshiva University, took exception to the practice, writing that “citation of an inherently unstable source such as Wikipedia can undermine the foundation not only of the judicial opinion in which Wikipedia is cited, but of the future briefs and judicial opinions which in turn use that judicial opinion as authority.” Recognizing that concern, Lawrence Lessig, a professor at Stanford Law School who frequently writes about technology, said that he favored a system that captures in time online sources like Wikipedia, so that a reader sees the same material that the writer saw. He said he used www.webcitation.org for the online citations in his amicus brief to the Supreme Court in Metro-Goldwyn-Mayer Studios v. Grokster Ltd., which “makes the particular reference a stable reference, and something someone can evaluate. (…)”

Friday, March 14, 2008 5:08:00 AM  

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