Orin Kerr: It’s a mess, but then what’s the alternative — split the Ninth Circuit?

Or just call them super-panels, which is more accurate. I remember a few years ago a panel had to reverse itself because it issued a ruling without realizing that the en-banc court had issued a contrairy ruling a few days earlier.

Are we allowed to cite those?

To be clear, I don’t think anyone believes was necessarily marijuana that led to that opinion. Most people agree there are other controlled substances that could also have generated that same basic approach.

Y’know, it’s poor form for a blog poster to win his own comment thread.

It’s a mess, but then what’s the alternative — split the Ninth Circuit?

Hmm, split the Ninth Circuit…..

That wasn’t the basic premise of the en banc decision. The basic premise of the decision was that magistrates are encouraged to impose limitations on warrants outside the Fourth Amendment, using their own personal sense of good policy, and that courts should refuse to issue warrants unless the government waives reliance on Supreme Court Fourth Amendment doctrine, effectively delegating search and seizure rules to individual magistrates. (See also the rest of the opinion, with lots of other free-form rules.)

To be clear, I don’t think anyone believes was necessarily marijuana that led to that opinion. Most people agree there are other controlled substances that could also have generated that same basic approach. But I haven’t found anyone yet who is willing to say that they think the opinion is actually legally correct, even though many (including myself, to a large extent) are sympathetic to the policy goals of the Ninth Circuit in handing down the rules it did.

(en banc)
(super en banc)
(en banc el jefe)
(super trooper abba el banc)
(el banco del circuito estupendo del nacional noveno)
(en banc, yo!)

I am in eager anticipation!

I really like this place, even when I disagree with the posts (not this one, BTW).

Nick

Incidentally, there may already be a Circuit split on at least some of CDT’s restrictions, although as cert-worth splits go, it may be a bit underwhelming. See U.S. v. Burgess, 2009 WL 2436674 (10th Cir. Aug. 11, 2009) (at hns. 10-11, holding that it is not necessary to put computer search protocols or procedures in a warrant application).

Ah, then you are clearly endorsing the decision!

[/cleanville]

… Agreed the super en banc is odd, esp. given the strong likelihood for cert; still, cert isn’t in the court’s hands, whereas apparently super-banc (en Federal Reserve?) is; if the straw poll suggests a majority to undo the damage, then that may be the best course.