Ricci Revisited (Sotomayor alert)

The Volokh Conspiracy ^ | 6-6-2009 | Jonathan Adler

[stan_sipple]

Adam Liptak has an interesting article on Ricci v. DeStefano in the NYT. The unpublished order resolved the case without creating binding precedent for the Circuit. Perhaps this was an acceptable compromise because the panel eventually concluded that a written opinion based upon the particular facts in this case could create a problematic precedent; hard facts make bad law, etc. Yet this was not the end of the matter. Once it was clear other judges on the Circuit disagreed with the panel's disposition, a per curiam opinion was published, adopting the district court's reasoning as binding circuit precedent. Therefore, the considerations that likely led the panel to issue the original unpublished order were no longer applicable. Indeed, if Liptak's account is accurate, it makes the Second Circuit panel's conduct seem worse than I had presumed. The very fact that the panel had such difficulty uniting around a single rationale for the case in the first place is, in itself, evidence that summary affirmance and adoption of the district court's rationale as Circuit precedent was inappropriate (a point Judge Cabranes stressed in his dissent from denial of rehearing en banc). No doubt this is not the last we have heard about this case and how it was handled