Federal Judiciary

U.S. v. Comprehensive Drug Testing (9th Cir. - Aug. 26, 2009)

By Shaun Martin

Okay, okay. Maybe I should have high expectations. It's an en banc opinion, so you know it's going to get scrutiny. It's about the BALCO case, so it's going to get press coverage. Finally, it's written by Chief Judge Kozinski -- and on a topic (electronic privacy) in which he's keenly interested -- so his normally wonderful writing is presumably going to be even better.

But still. This is amazing. And I don't say that lightly. In my dreams I could write an opinion this good.

It's clear. It's concise. It provides meaningful, systemic guidelines. It's just. It's got a keen sense of both the practical way the world works as well as the dangers inherent in certain conduct. In short, it's exactly what I want in a wide-ranging opinion that makes meaningful precedent. (It also absolutely crushes the dissents of Judges Ikuta and Callahan, and even does so in a relatively nice way. Which just proves that you can afford to be generous when it's clear to everyone that you're both winning and right.)

I'm sure that I have a particularized fondness for this opinion because I've occasionally served as precisely the type of special master to search warrants to which Chief Judge Kozinski refers in the opinion (albeit in the non-electronic context), and agree that that's an extremely valuable role sometimes. But even without that experience I'd still find the opinion spot on. It's not that this is an easy case or that the result is self-evident. It's that Judge Kozinski writes something that, to me, is both exceptionally powerful and utterly persuasive.

I will say one more thing about Alex. As he's gotten older, and perhaps more bored/jaded, he's gotten a bit crankier and less fun at oral argument. But his opinions -- always good to begin with -- are as good now, and often even better, than they were a decade ago. He's definitely in his stride. And this one's a classic example.

If you only read a dozen Ninth Circuit opinions this year, this should be amongst them.

Full post as published by California Appellate Report on August 26, 2009 (boomark / email).