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9th Circuit

The 9TH Circuit Court of Appeals has long been perceived as a maverick court flaunting a judicial philosophy of liberal leanings and loose interpretation of the law. Take the court's now-infamous 2002 ruling in favor of a Sacramento, Calif., dad who objected to the words "under God" in the Pledge of Allegiance at his daughter's school. The case, Newdow v. United States Congress, Elk Grove Unified School District, et al, created a media and Internet blitzkrieg. The Supreme Court unanimously overturned the decision on appeal, a ruling that--if you believe popular discourse--is par for the course in reprimands of 9th Circuit decisions.

In fact, a 2004 study from the Center for Individual Freedom that examines statistical data from the past four Supreme Court terms and various 9th Circuit cases since 1994, states that, "Based on a variety of criteria, the 9th Circuit is definitively the most reversed federal appellate court in the country and requires far more attention from the Supreme Court than any other inferior court."

Reid Alan Cox, the Center's assistant general counsel and co-author of the study, says the number of reversals alone is indicative of the liberal tendencies of 9th Circuit judges, and that should be cause for alarm for corporate attorneys.

"This not only has an impact in criminal cases but corporate decisions as well," he says. "If I were the general counsel representing a corporation, I would feel at an inherent disadvantage because of [the court's] predisposed tendencies to rule against corporations."

Jonathan Cohen, a partner at Kirkpatrick & Lockhart in San Francisco, goes further, saying, "[The 9th is] a place that all lawyers try to avoid at all costs--including me."

Reversal Of Fortunes

Some legal scholars, as well as corporate litigators, disagree with such generalizations, believing the anti-corporation reputation--along with the statistics--is outdated.

"It is not true any longer that the 9th gets overturned with more frequency," says Jesse Choper, a professor of corporate and constitutional law at UC Berkeley's Boalt Hall School of Law. "A lot of the criticism--which is often quite partisan--is based on inaccurate facts."

Adds M. Lawrence Popofsky, a shareholder and senior attorney with 42 years of litigation experience at Heller Ehrman White and McAuliffe: "There is no track record in the 9th that differentiates them in corporate law rulings. It's a vastly overstated concern. These views are suspect and not generally helpful to corporate clients in predicting what will occur."

Indeed, corporate attorneys should consider the factors unique to the 9th that explain its frequent presence in the High Court before sounding the sirens. The most obvious feature is the sheer size--the 9th Circuit has appellate jurisdiction over 11 district courts, more than any other circuit by far--and this naturally produces a larger caseload. Hence, more cases than elsewhere are sent to the Supreme Court and overturned.

The geographical responsibility does explain why so many cases are appealed from the 9th, Cox says, but 9th Circuit reviews still account for a disproportionately large share of the Supreme Court docket.

Perhaps the more important issue to consider is that the 9th Circuit hears many cutting-edge cases in developing areas of corporate law, such as Internet and high-tech issues, environmentalism, and foreign business.

Stellman Keehnel, a partner at Gray Cary in Seattle, agrees the unique cases contribute to the circuit's individualist reputation, but thinks left-leaning judges also figure into the stats. "It is possible," he says, "that people who practice on the West Coast may have a greater inclination to question established precedent than people elsewhere. Look at the creativity rooted in the West: there's Silicon Valley and businesses such as Microsoft, Google and Yahoo!. There is no reason this independence will not also be true in the judicial areas. There are many times when the 9th's willingness to look afresh at

documents benefits the corporate client."

Cox admits 9th Circuit judges have been on the forefront of judicial decision-making, but says: "It's not a matter of liberal versus conservative. Far more, they are venturing so far out in the judicial unknown, [that they] are no longer in the law, and must be reined in by the Supreme Court."

Vikram Amar, a professor of law at University of California, Hastings College of the Law in San Francisco, argues reversal rates alone do not accurately reflect the 9th Circuit's record, stating that "justice-votes-per-case" is a more accurate measure.

"Getting reversed 5-4 is not that big a deal," he says. "A 9-0 reversal, though, is out of step with the Supreme Court."

During the last term, the circuit's reversal rate shows improvement, faring better with a 76 percent reversal rating compared to the other courts' average of 78 percent.

A Matter Of Opinion

Of course, the philosophy of the presiding judge has some affect on the rulings he or she issues, but soon the 9th will have the same amount of Democratic and Republican justices--good news for businesses. In addition, recent Washington appointees Richard Tallman, Ronald Gould and M. Margaret McKeown all have business litigation backgrounds.

"When you have new kinds of cases based on new kinds of technologies, it's hard to know what 'liberal' or 'conservative' means because we have no track record," Amar warns. In the issue of online-movie file sharing, for instance, the 9th found software providers Grokster and Morpheus not responsible for user action and not guilty of copyright infringement. The case will be appealed to the High Court, but it's impossible to speculate whether a panel will rule to protect the record industry or promote free-market competition from the software providers.

Of note, too, is the administration's effort to break up the size of the circuit. The last time Congress considered breaking up the 9th, Professor Choper was called to testify and argued against it.

"There are certainly ideological judges," he says, "but I don't know how much they play out in business cases. You don't split a circuit by ideological reasoning."

Attorneys who've litigated for decades say they've seen this stuff come and go. In corporate litigation, antitrust and securities law, it's business as usual.

"This is what makes law exciting," Keehnel says. "Where would the fun be in law if no one were ever testing new theories? It can be disconcerting to companies that want stable rules and not experience change, but really, who wants to be bored his whole life?"

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