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Would the Supreme Court Agree With Judge Fogel's View of the 8th Amendment?:
In a memorandum handed down on Friday, Judge Fogel of the Northern District of California concluded that the Eighth Amendment requires relatively careful judicial scrutiny of how the state of California implements the death penalty. There are a lot of complicated issues here, but I'd like to focus on just one very narrow question: If this issue gets to the Supreme Court, how likely is it that a majority of the Supreme Court would agree with Judge Fogel's view? I tend to think it's not very likely.

  First, a little bit of background. The Supreme Court has said that "the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment forbidden by the Eighth Amendment." Whitley v. Albers, 475 U.S. 312, 319 (1986). "Among 'unnecessary and wanton' inflictions of pain are those that are 'totally without penological justification." Rhodes v. Chapman, 452 U.S. 337, 346 (1981). For example, deliberate indifference to an inmate's serious medical needs can be cruel and unusual punishment. Estelle v. Gamble, 429 U.S. 97 (1976) (untreated back injury). As far as I know, the Supreme Court has never directly applied these principles to methods of execution. We have a general principle that the unnecessary and wanton infliction of pain violates the 8th Amendment, but we don't have any Supreme Court guidance on the degree of scrutiny given to whether a particular infliction of pain is "necessary" or "unnecessary" in the context of steps that are part of an execution.

   As I read Friday's memorandum, Judge Fogel appears to interpret this guidance as establishing that a system of capital punishment needs to be carefully designed to ensure that the risks are as low as is reasonably possible that the punishment might involve the unintentional infliction of pain. Instead of considering whether the government's intent is to execute the condemned without pain — which all agree it is, I believe — Judge Fogel is focused on the risks that the condemned may feel pain because the government might make an error. Specifically, is the state's system of capital punishment sufficiently trustworthy that it gives Judge Fogel "constitutionally adequate assurance" the condemned inmate will feel no pain?

  Of particular interest, Judge Fogel suggests that it may be difficult to figure out how a state can satisfy this constitutional duty of care. His opinion suggests it may require considerable additional study. He writes that "a single, brief meeting primarily of lawyers, the result of which is to tweak" existing practice is unlikely to be enough to satisfy him; to be satisfied, he "may require consultation with independent experts and with other jurisdictions" and a review of "contemporaneous records of executions, such as execution logs and electrocardiograms." As I read his opinion, Judge Fogel believes that if a state wants to have a system of capital punishment, the method of execution must be professional, well-functioning, and reliable. Further, it is up to judges to evaluate each system to determine if that state's system is sufficiently professional and reliable to satisfy the Constitution.

  If this issue went up to the Supreme Court, would the Justices agree with this approach? Gazing into my crystal ball, I tend to think they would not. Having a more professional death penalty system sounds like a very good idea on policy grounds, but I doubt that a majority of the Supreme Court would demand it as a matter of constitutional law. First, I don't know of any Supreme Court authority that directly supports such close scrutiny of the details of executions. And second, I doubt the Justices would want to set new constitutional standards that may require close judicial scrutiny in each execution. Presumably that would require hearings about the existing status of the death penalty system before every execution around the country, including appellate review of that hearing, introducing additional years of delay to each case. I suspect that the Court would be willing to rule out methods of execution that are clearly too risky if easier alternatives are readily available, but I doubt a majority would set a standard that requires such detailed judicial scrutiny of the process as Judge Fogel has in mind.

  That's my guess of where the Court is, anyway. I gather Judge Fogel's plan is to not to find out; the end of his opinion makes clear that he wants the state of California to work with him rather than take the issue upstairs. I don't know enough about the politics of the death penalty in California to know if the Governor is likely to to that. But I suspect that the Supreme Court would have a different approach if the issue came before them, either in this case or in another one.

  For more writing on Judge Fogel's opinion, check out critical posts from Patterico and Beldar (who describe the opinion as unsupported by existing law) and this favorable perspective from death penalty opponent Deborah Denno (who calls the opinion "bold" and "incisive").
Steve Henderson (mail):
Here's something I have found odd about the argument over lethal injection protocols.

States moved away from the chair, the gas chamber, hanging, etc., because they decided, as a matter of policy, that lethal injection was a more humane way to execute.

But the Supreme Court (and to my knowledge, no other court) never said anything about the constitutionality of those other methods, all of which are quite visibly more violent than lethal injection.

But now you have inmates bringing constitutional challenges to lethal injection protocols that, even at their worst, must be far less brutal than the abandoned methods.

And you have judges, in some instances, indulging those constitutional claims, often applying 8th-Amendment anlaysis.

It strikes me as somewhat backwards, no?
I mean, what if one of the states where this is being challenged simply said: "Alright, let's go back to the chair."? Or what if they went back to the gas chamber?

Unless I'm mistaken, nothing under Court precedent would prevent either - right?
12.18.2006 3:02pm
Greedy Clerk (mail):
Regardless of whether the Supreme Court would agree, Judge Fogel answers first to the Ninth Circuit, and that opinion is clearly written for them. Beldar is generally unreliable on legal issues and is incredibly partisan; his criticisms of Judge Fogel are ludicrous and I highly doubt anyone who has litigated in the Northern District would not agree that Judge Fogel is genuinely trying to get the law right here, whether he agrees with it or not. Patterico's criticisms are also wrong -- Patterico ought to know better as he knows how wacky the Ninth Circuit is and he should put himself in the position of a district judge trying to get it "right" under Ninth Circuit precedent. Judge Fogel has done an admirable job at that; and this guy would be dead already if the State had just opted to kill him with the Barbituates.

[OK Comments: This ad hominem argument seems notably lame. Patterico actually discusses Ninth Circuit precedent, and why he thinks Judge Fogel's opinion is inconsistent with it. Maybe he's right, maybe he's wrong, but he does a lot more than just give a personal attack against his opponent. GW, if you have the case authority and the legal arguments for why you think Fogel is correct under Ninth Circuit law -- which isn't the point of this post, of course, but is still an interesting question -- I hope you will provide them.]
12.18.2006 3:19pm
Justin (mail):
"There are a lot of complicated issues here, but I'd like to focus on just one very narrow question: If this issue gets to the Supreme Court, how likely is it that a majority of the Supreme Court would agree with Judge Fogel's view? I tend to think it's not very likely."

I'm sympathetic to this view of intermediary legal analysis, but unfortunately this is not the correct question. Lower courts are not only not expected, but are not allowed, to speculate as to how the current Supreme Court would view a particular legal issue. It must faithfully apply OLD Supreme Court law to the current question. It cannot and should not assume a case is overruled or limited to its facts without first getting the directive from the Supreme Court. Scalia has said quite a bit about this in his dissents.

Now, if Judge Fogel has not faithfully applied precedent, that's one thing. And, in a legal realism sense, Judges who don't want to be overturned should consider how the current reviewing courts will actually decide things.
But Judges are not instructed to so do, and there are a multitude of competing theories as to how Judges should decide "new questions," and many of those theories do not explicitly run into Supreme Court cases stating otherwise. But it is not a Judge's goal to write opinions that will not be reversed, nor should it be. It should be their goal to faithfully apply existing precedents to new issues, and allow the 9th Circuit (en banc) to re-examine its own holdings, or the Supreme Court to re-examine their own holdings, if they so desire.

[OK Comments: Justin, I was extra-careful to say that I was only raising a narrow question; obviously the narrow question I was considering was *not* whether the opinion was correct under binding precedent. I'm not sure why you think that whether the opinion is correct under Ninth Circuit precedent is the only "correct question" that one may ask here. Why is it improper to ask other questions?]
12.18.2006 3:25pm
Justin (mail):
Ooops, once again my post is unneccesary in light of Greedy Clerk's post, which I didn't see before posting. Greedy Clerk makes essentially the same points, though in a slightly different light.
12.18.2006 3:27pm
Anderson (mail) (www):
which all agree it is, I believe

That may be assuming a bit much. The State may be actually indifferent to whether the executed suffers or not. Claiming to have no "intent" to cause suffering gets you only so far.

[OK Comments: Anderson, can you explain why you think this? Or is this just your speculation?]
12.18.2006 3:30pm
Justin (mail):
I'd say the State's intent is to use the most politically feasible way. This may have "harm" calculations in it because of the interests in third parties (but, given the rise of "revenge" as a reason for punishment, that doesn't necessarily mean the calculations go entirely one way), but unless those people dominate all other political calculations (which they do not), the State's interest is more complex.
12.18.2006 3:47pm
LawClerk1 (mail):
Forget to whom Judge Fogel answers and in what order. The real problem here is that California seems to have failed to make the argument that you don't deserve a painless death or that the risk of a painful death is not an 8th Amendment problem. (I say seems b/c I haven't looked at their papers). Rather, California seems to rely on the argument that its system won't result in such a painful death (or risk thereof). Rather than "no it won't," California ought to be arguing "so what if it does."

Seems to me that the blame lies with California's AGs, not with Judge Fogel. Except for issues that go to the Court's authority to hear a particular case or order a particular remedy, I doubt that it would be proper for Judge Fogel to rule in California's favor using legal principles that California has (consciously or otherwise) failed to raise.

LC1
12.18.2006 4:11pm
Kent Scheidegger (mail) (www):
Or what if they went back to the gas chamber?

Exactly what California should do, IHMO. Just use a different gas.
12.18.2006 4:17pm
markm (mail):
Lawclerk1: Good point.

Hanging was the usual penalty for murder when the Bill of Rights was written and ratified, and for long afterwards. Furthermore, if I have the historical sequence right, it wasn't a custom in the 1790's to measure the drop to ensure that the condemned died of a broken neck instead of strangulation. (It's not as simple as always using a long enough rope; the prisoner's weight and neck strength had to be figured in, or else either some would strangle or sometimes a head would come off.) At least in England at this time, condemned prisoners would often slip some money to the executioner to get a longer drop.

So original meaning/intent seems pretty clear here: death by strangling on the end of a rope was neither unusual nor considered too cruel. If lethal injection has any chance of being as painful as that, they are really doing something wrong.
12.18.2006 4:27pm
jgshapiro (mail):
Appropo of Steve Henderson's comment above, why not simply adopt a rule that says that the state must execute a condemned inmate in the manner that (on average) inflicts less pain than any other feasible method? Put the burden of proof of feasibility of a different method on those challenging injection. The rule would not be "no pain," which may not be possible, but rather, less pain than through any other feasible execution method.

With this rule, a state would be ok using any method of execution (say, injection), unless the challenging inmate would stipulate to an alternative that is feasible. If he could not, the status quo applies. (I use the word feasible to distinguish between workable proposals and proposals that are merely designed as red herrings, such as the proposal to have an anesthesiologist in the room when the three drugs are administered, given that just about all doctors refuse to participate in executions.)
12.18.2006 4:38pm
Steve Henderson (mail):
I think I should clarify what I said above.

Put simply, it seems a stretch, legally speaking, to say that lethal injection could pose 8th Amendment problems when the justices have never said that hanging, or the firing squad, or the chair raise such issues.

As I pointed out above, the move to lethal injection (and away from other methods) was a policy decision, made without any constitutional analysis from the Court.

The closest thing we have is the language that Orin cites above from Whitley v. Albers, which prohibits wanton cruelty in the prison context but says nothing about methods of execution.

Is the cart not before the horse here?
12.18.2006 5:16pm
californian (mail):
Judge Fogel is noted for his ability to handle litigation in a way that prompts litigants to compromise or settle. (In all his years on the federal bench he's had only a few trials.) This opinion can be seen in that light. It will prompt the state of California to clean up their act. If they do, and then pass muster under Fogel's review (as seems probable to me), then the anti-death penalty side may decide they don't want to appeal from that record.
12.18.2006 6:42pm
Anderson (mail) (www):
Judge Fogel is noted for his ability to handle litigation in a way that prompts litigants to compromise or settle.

Ya know, you can say that about a judge in a *nice* way, and then there's another way to say it ... I can certainly think of some judges who fit the latter way of saying that ....
12.18.2006 6:46pm
Ryan Waxx (mail):
> It will prompt the state of California to clean up their act. If they do...

Except it isn't in the Judge's authority to dictate to the state of California - and this make-believe opinion he wrote up to justify doing so doesn't give him that authority.

Hey, there's quite a few acts *I'd* like to tell California to clean up. Of course, if *I* put on a black robe and started barking orders, I'd be rightly laughed at.

This is simply a case of trying to kill the death penalty without being granted actual authority to do so. The method here is to dishonestly redefine whatever process is in place as inadequate, and do the same to each process that arises in its place. Over and over and over...

The current system, which takes decades to execute prisoners (and therefore makes a mockery of the death penalty instead of enforcing it), is a direct result of this process of always and forever defining the current process as 'not good enough'.
12.18.2006 7:22pm
Pub Lius (mail):
Am I the only one who thinks that it is weird to issue an ORDER labeled "Memorandum of Intended Decision; Request for Response from Defendants"? The judge rules, "The Court concludes that absent effective remedial action by Defendants ... this exhaustive review will compel it to answer the question presented in the affirmative." Isn't this a prohibited advisory opinion? See Flast v. Cohen, 392 U.S. 83 (1968) ("[T]he oldest and most consistent thread in the federal law of justiciability is that the federal courts will not give advisory opinions").
12.18.2006 7:42pm
californian (mail):
Pub Lias,

Judge Fogel is deeply respected. But, yes, his opinion is a way of prompting reform by the litigant in a way that would obviate the need to make a definitive ruling. I can see that Ryan Waxx is appalled by that, but I can see other people concluding that Judge Fogel has done California a service by giving it a reason to do what it should have done of its own volition some time ago. My sense is that Judge Fogel will never find lethal injunction per se unlawful.
12.18.2006 7:50pm
john w. (mail):
Am I correct in believing that the "issue" [ I use the quotes because I personally think it's a make-believe issue] with lethal injections is the fact that the cocktail contains a paralyzing agent; and if they use too much of the paralyzing agent and not enough of the sedative, then the criminal might possibly be suffering for a while, but be unable to express it?

If so, then why in Heaven's name don't the States just leave out the paralyzing agent, and use exactly the same mix that veterinarians use for putting down animals???

A few months ago, I had to take a terminally sick German Shepherd to a Vet to be put to sleep, and the whole process was so straight-forward: The dog lost consciousness before the needle was even half empty, and lost heartbeat in less than one minute.

My wife &I both walked out of the Vet's office with the same thought: "When it comes my time, I hope I'm lucky enough to go as easily as that dog went!"

Our whole society has gone stark, raving Nuts if we think that modern euthanasia is too "cruel" for vicious criminals.
12.18.2006 8:04pm
Kovarsky (mail):
Pub Lius,

I'm not saying the opinion isn't unusual, but it's not advisory in the sense that there's not a case or controversy. It may violate some nonconstitutional (prudential) justiciability rules, but I think you'd be hard pressed to make an Article III argument.
12.18.2006 8:23pm
James Dillon (mail):
californian,

It may well be that Judge Fogel has done California a service by proceeding in this manner-- just as a judge would do any defendant a service by giving that defendant notice of his intention to rule against it so as to allow it to bring itself in line with the law rather than suffer the unpleasant experience of a binding legal order issued against it-- but Pub Lius makes what looks to me like a compelling point that this seems to be merely an advisory order, precisely the kind of thing that federal courts make a big deal about not doing. Whether Judge Fogel is deepy respected or not, it seems like he's stepping well outside the scope of his authority by proceeding in this way. Orin, a follow-up post exploring this issue would be quite interesting, in my opinion.
12.18.2006 8:29pm
Kovarsky (mail):
Orin,

Having a more professional death penalty system sounds like a very good idea on policy grounds, but I doubt that a majority of the Supreme Court would demand it as a matter of constitutional law. First, I don't know of any Supreme Court authority that directly supports such close scrutiny of the details of executions. And second, I doubt the Justices would want to set new constitutional standards that may require close judicial scrutiny in each execution.

I think you've loaded the dice a little bit here. I don't think the Court would require "close scrutiny," but based on the 9-0 in Hill v. McDonough, the Court seems, pretty clearly, to think that there's some sort of 8th amendment floor. We might disagree with whether California falls below this floor, but that's a different issue than whether the floor exists.

the issue in hill was a narrow one, but it seems like the holding - that 1983 claims are a cognizable means to challenge injection sequences - would be superfluous/not reached unless the court believed that there was some conceivable 8th amendment problem. See this language:

Hill's action, if successful, would not necessarily prevent the State from executing him by lethal injection.
The complaint does not challenge the lethal injection sentence as a general matter but seeks instead only to enjoin the respondents “from executing [Hill] in the manner they currently intend.” App. 22 (Complaint ¶20). The specific objection is that the anticipated protocol allegedly causes “a foreseeable risk of . . . gratuitous and unnecessary” pain. Id., at 46 (Application for Stay of Execution and for Expedited Appeal). Hill concedes that “other methods of lethal injection the Department could choose to use would be constitutional,” Brief for Petitioner 17, and respondents do not contend, at least to this point in thelitigation, that granting Hill’s injunction would leave the State without any other practicable, legal method of executing Hill by lethal injection. Florida law, moreover, does not require the Department of Corrections to use thechallenged procedure. See Fla. Stat. §§922.105(1), (7) (prescribing lethal injection and leaving implementation tothe Department of Corrections). Hill’s challenge appears to leave the State free to use an alternative lethal injection procedure. Under these circumstances a grant of injunctive relief could not be seen as barring the execution of Hill’s sentence.

Again, I'm not saying this compels the result here, but it's a 9-0 with pretty suggestive language. California has screwed up 2 more executions since Tookie Williams, after they promised it would never happen again. The staff is not trained, the facilities are unsuitable, there is not a means diagnosing problems during the administration of the procedure.

All the litigants, I think, that if it were indeed true that people were conscious during the phase II and phase III chemical injections, the pain would be horrifying and excruciating (way past any "gratuity" requirement). I'm not sure why people keep reasoning that this is more humane than a firing squad or electrocution. Jeb Bush relied on advice that if the chemical sequence actually worked this way, prisoners were literally being "tortured to death." If you establish that there's an 8th Amendment floor, and the evidence is enough to convince Jeb Bush that the executions are inhumane, I'm guessing the Court would be willing to take a pretty serious look at the evidence.
12.18.2006 8:39pm
OrinKerr:
Kovarsky,

I think you're reading too much into Hill. It was unanimous because the decision had nothing to do with the merits of the 8th Amendment claim.
12.18.2006 8:52pm
Kovarsky (mail):
John,

Am I correct in believing that the "issue" [ I use the quotes because I personally think it's a make-believe issue] with lethal injections is the fact that the cocktail contains a paralyzing agent; and if they use too much of the paralyzing agent and not enough of the sedative, then the criminal might possibly be suffering for a while, but be unable to express it?

It contains 3 agents - 1) unconsciousness; 2) paralysis; 3) cardiac arrest inducement. The "issue" is the (1) is wearing off and all medical experts on all sides agree that - if conscious the prisoner is experiencing pain roughly akin to cauterizing every synapse in the human body simultaneously. So this "issue" is in quotation marks because you are not understanding it.
12.18.2006 8:55pm
Kovarsky (mail):
Orin,

Then I don't think I completely understand what you're asking. You wrote:

I suspect that the Court would be willing to rule out methods of execution that are clearly too risky if easier alternatives are readily available, but I doubt a majority would set a standard that requires such detailed judicial scrutiny of the process as Judge Fogel has in mind.

Although Nelson and Hill are about whether potential habeas petitioners can plead their claims through 1983 procedure, both seem quite expressly to contemplate that there exist "methods of execution that are clearly too risky if easier alternatives are readily available." I'm sure that the opnion would not have been unanimous if the merits had been presented squarely to the court rather than as background to the 1983 claim, but it does clearly signal willingness on the court to consider that certain execution methods violate the 8th amendment. In both cases the face of the claim for which the Court considers the pleading requirements is an Eighth Amendment claim.

I just can't imagine the Court would first hold that you could plead an 8th amendment claim through 1983, and then double back and hold that there was no 8th amendment claimn there to begin with.
12.18.2006 9:03pm
OrinKerr:
Kovarsky,

My understanding is that the Court has received dozens if not hundreds of petitions asking the Justices to resolve the merits of this question. If you think the Justices have a settled view of it that imposes Eighth Amendment limitations, why haven't they granted any of these petitions?
12.18.2006 9:40pm
Kovarsky (mail):
Orin,

I don't think they have a settled view; I'm guessing that's why they don't accept the petitions. Letting lower courts sift - like Fogel did here - the factual minutae of these things is, I'm guessing, precisely why the Court hasn't granted cert. on the issue. They don't want to draw a line. I took you to ask us to assume they did grant cert., and di consider the issue expressly. I guess this is the thrust of your post - would the Court agree with the following statement:

As I read his opinion, Judge Fogel believes that if a state wants to have a system of capital punishment, the method of execution must be professional, well-functioning, and reliable. Further, it is up to judges to evaluate each system to determine if that state's system is sufficiently professional and reliable to satisfy the Constitution.

I took you to be asking what the Court would do if it had to had granted cert. in this case. My answer its that I don't think the Supreme Court would impose a prophylactic rule, but I also don't think it would bar lower federal courts from making the fact-bound decision Judge Fogel makes here. The Court certainly thinks there is an 8th amendment floor - I doubt they would find the holding itself (forget for a moment the strange procedural posture of the opinion) would be beyond the district court's discretion.
12.18.2006 9:53pm
Kovarsky (mail):
two words for myself: preview pane.
12.18.2006 10:24pm
OrinKerr:
Kovarky,

I don't understand. Either the Calfornia system is constitutional or it's not, right? I can't imagine that the Supreme Court would say that it's up to individual trial judges to exercise "discretion" to decide one way or the other.
12.18.2006 10:32pm
OrinKerr:
I should clarify my last comment, which wasn't clear: I think the current Court would say that there is an 8th Amendment floor, but that the floor is pretty low..
12.18.2006 10:37pm
just looked at your Supreme Court brief:
Orin: Why not a "pro bono" project on behalf of the State of California in this case? Jeebus . . . .
12.18.2006 11:01pm
Kovarsky (mail):
Orin,

I don't think it's a "half pregant" situation like you're making it out to be. i take the opinion to be no more than that the planned method of execution is unconstitutional. california can pick a noninjection method or, more likely, another chemical injection sequence, or most likely, have trained personnel carry out the execution.
12.18.2006 11:32pm
TheProudDuck (www):
Since the Supreme Court has upheld hanging and the firing squad as compliant with the 8th Amendment, California should simply add a provision to the Penal Code to the effect that should any method of execution be challenged as unconstitutional, or found to be so, execution shall be by hanging or gunshot.
12.19.2006 12:03am
Kovarsky (mail):
TheProudDuck,

They should do that, if they get the votes. Of course we all know that you won't get the votes for hanging. You can only get the votes if it looks painless, even if it's actually excruciating.
12.19.2006 12:56am
CynicPerry:
Seriously, there is no reason for all the complexities involved in current execution methods. Give the prisoner a simple choice of the way he wants to die (as I beleive Texas did, at least at one point), but don't limit it to tradition execution methods.

While the state has an interest in the cost and complexity of a given execution method, it seems to me that any method that is less complex and costly then the standard five (hanging, firing squad, electric chair, gas chamber, 3 drug lethal injection) should be on the table.

Some options to be explored could be simple massive overdose on any of several "street drugs" - I am told it is a pleasent way to die, to the point that people who come close to dieing that way commonly want are willing to overdose again, knowing they are killing themselves, just for to get that high one more time. Another option, as mentioned above, is any form of "knockout gas", such as carbon monoxide. Yet another option, and one that is almost sure to have the least problems associated with it, is full anaesthesia, followed by a death of your choise - since a person under anaesthesia has been shown to feel no pain.

Beyond executions, one place that people should be looking for solutions to the "cruel and unusual" argument is assisted suicide. At least one state, Oregon, has legalized assisted suicide - they use a drug cocktail, and there are no problems associated with it, so far. And more then a couple countries have also legalized assisted suicide - again, they have come up with painless ways to die. Hell, any doctor could probably give you a whole list of ways to *painlessly* kill someone.

I guess my conclusion is simple - why make something complex out of something so simple as death?
12.19.2006 11:47am
Justin (mail):
OK: The reason why I wrote my post is that I read your post as a criticism of Fogel's decision using a different perspective. If it was meant to not be critical of Judge Fogel's decision at all, then I withdraw my point, though I think you probably should have declared that up front in your post, because it objectively reads as critical.
12.19.2006 5:36pm
OrinKerr:
Justin,

I thought that my disclaimer at the beginning made the narrowness of my point pretty clear: "There are a lot of complicated issues here, but I'd like to focus on just one very narrow question: If this issue gets to the Supreme Court, how likely is it that a majority of the Supreme Court would agree with Judge Fogel's view?" I made this disclaimer because it's not really interesting what the Ninth Circuit has said on this issue, or whether Fogel is being faithful to binding 9th Circuit precedent; this seems like an issue that the Supreme Court will decide, not the CA9.
12.21.2006 2:24am