April 23, 2014

Supreme Court smackdown

Yes, the heading for this post is definitely hyperbolic, but, in the appellate-procedure world, we’ll take our controversies where we can find them.

In a forthcoming UCLA Law Review, Professor Daniel Bussel and Supreme Court Justice Goodwin Liu will face off over the court’s practice of having its opinion written before it schedules a case for oral argument.

An abstract of Bussel’s article — “Opinions First – Argument Afterwards” — sets the stage:  “For twenty-five years, the California Supreme Court has operated under a bizarre internal operating procedure that requires majority opinions to be written and agreed to prior to oral argument.  This procedure squanders and demeans the parties’ formal opportunity for appellate argument, is inconsistent with traditional common law appellate process, and violates the state and federal Constitutions.”

Justice Liu’s rejoinder is titled, “How the California Supreme Court Actually Works:  A Reply to Professor Bussel.”  We have been unable to find an abstract for that article.

As the putative appellant, Bussel will have the last word, in “The Best of All Possible Worlds? — A Rejoinder to Justice Liu.”

At the beginning of his initial piece, Bussel praises “the professionalism of the court and its staff” for “compl[ying] fully with my public records request and [taking] the time to thoughtfully comment on the resulting analysis.”  Some smackdown!

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