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Fair Housing Council v. Roommates.com (9th Cir. - April 3, 2008)

By Shaun Martin

There are benefits to being the Chief Judge.

For example, when you've written the panel opinion, and it gets taken en banc, you're always on the en banc court to defend -- and vote for -- your ruling. Plus, at least if you're in the majority in the en banc court, you get to assign who writes the opinion. And you can feel free to assign yourself. Which then lets you do a cut-and-paste job, if you'd like, from your prior opinion. Which is nice.

Finally, particularly if you've just become the chief judge, and particularly if you're known as "irrepressable," you can prove that your new position will not change you much by writing the majority decision to confront your dissenting colleagues more than a little bit directly. Not by name or anything. But at length. And in a fashion that's, in places, a bit biting.

All of which works for you particularly well if your first name is Alex.

Fresh off the cover of this month's California Lawyer magazine, Chief Judge Kozinski does all of the above in this closely-watched CDA case. Which finds that roommates.com isn't categorically immune under the CDA for setting up its roommate matching system to allow illegal discrimination. I won't comment much about the merits, since I'm sure that this 8-3 decision will get a lot of press anyway. But I will say that I think that Chief Judge Kozinski does a darn good job here. And that his opinion for the en banc court was even better than his panel opinion. Which I liked as well.

Full post as published by California Appellate Report on April 03, 2008 (boomark / email).