On 27 Jan 20040, Dave wrote:
said:
This charge is as oft stated as it is incorrect in fact.
As 9th Cir. Judge Hawkins wrote in a letter published
in the Wall Street Journal,
"The actual numbers are available for the rate at which
the Supreme Court 'slapped down' the lower courts in
the last Term. The average reversal rate was 74%. The
rate for the Ninth Circuit was 75% (same as the Sixth);
four circuits had 100% reversal rates (Second, Fourth,
Fifth & Tenth); and state supreme courts were reversed
81% of the time."
So according to Judge Hawkins the 2nd Circuit is always wrong.
He did not say (or even imply) that. Instead, he said that, for the
periods to which he was referring, correctly, the 9th circuit's
reversal (or, in the parlance of some ideologically-riven bloviator's,
"sla[p] down") rate was notably less than in the 2nd circuit.
If you define an appellate court's being "wrong" as having been
reversed, the numbers are what they are. (Note, again, however, that
there remain numerous but not always well-disclosed different ways to
assign and to calculate the numbers and also sometimes substantial
questions whether focus just or even primarily on reversal rates as
such compared with other modes of measurment [whether in the 9th or in
the 2nd or other circuits] is a fair and accurate assessment of
judicial performance.) What meanwhile has been "wrong" in these
rspects have been many mispreresentations of the numbers especially by
politically-influenced ideologues.
And you accept that analysis without
raising an eyebrow?
I accept the numbers referred to by Judge Hawkins in the manner he
referred to them because I have verified that they are correct.
(For non-lawyers in the crowd, the 2nd Circuit has
historically been perhaps the most well-respected
in the country year in and year out.)
I agree (except that reasonable knowledgeable persons might quibble
whether the above parenthetical "the" might have been better expressed
as "among the two or three" and that the 2nd circuit has occasionally
made some really dumb decisions).
I hesitate to make this posting because, as previously noted, none of
this Stuff appears to have anything to do with sailing.