Cory Webster on 9th Cir updates

The California Appellate Law Podcast

9th Circuit expert Cory Webster joins us to discuss several recent decisions out of the 9th Circuit. On this episode, we discuss:

• The Jack Daniels case: when binding precedent barred relief, Jack Daniels (and its savvy appellate team) moved for summary affirmance (you read that right) to get to the Supreme Court, which reversed in a unanimous decision.
• The dormant-commerce-clause case in which the 9th Circuit—with unlikely help from Justice Thomas—upheld a California statute that could affect pork production nationally.
• The Gap case, which demonstrates how the makeup of the 11-judge en banc pool drawn from the 29-judge circuit make a big difference.
• the Slack Tech. v. Pirani case, where a visiting district judge cast the deciding vote that created a circuit split—and precipitated a Supreme Court reversal setting binding precedent.
• When Judge Watford retired following a split decision, a petition for panel review is probably going to require filling the open slot on the panel—which could change the outcome.

Cory Webster’s biography and LinkedIn profile.

Appellate Specialist Jeff Lewis' biography, LinkedIn profile, and Twitter feed.

Appellate Specialist Tim Kowal's biography, LinkedIn profile, Twitter feed, and YouTube page.

Sign up for Not To Be Published, Tim Kowal’s weekly legal update, or view his blog of recent cases.

The California Appellate Law Podcast thanks Casetext for sponsoring the podcast. Listeners receive a discount on Casetext Basic Research at casetext.com/CALP. The co-hosts, Jeff and Tim, were also invited to try Casetext’s newest technology, CoCounsel, the world’s first AI legal assistant. You can discover CoCounsel for yourself with a demo and free trial at casetext.com/CoCounsel.

Other items discussed in the episode:

• Perry v. Kia Motors
• Jack Daniel’s and what to do when binding precedent squarely forecloses your position. Cory’s LinkedIn post. Jack Daniels Properties, Inc. v. VIP Products, LLC.
• Ninth Circuit en banc—29 votes vs. 11 judges on the en banc panel. Cory’s LinkedIn post. Lee (The Gap) v. Fisher et al. (9th tCir. Jun. 1, 2023) No. 21-15923.
• Visiting judge’s dissent vindicated by SCOTUS: Slack Techs. v. Pirani (Jun. 1, 2023). One trial court judge sitting by designation can be the deciding vote setting binding circuit precedent (and the reason a case goes to the Supreme Court). Cory’s LinkedIn post.
• What happens when a member of your panel leaves the court after a decision but before finality. Cory’s LinkedIn post. Kelsey v. Garrett (9th Cir. May 24, 2023) No. 22-15557.
• The case that saved the McRib: National Pork Producers Council v. Ross (May 11, 2023) National Pork Producers—Ninth Circuit angle. Cory’s LinkedIn post.
• Videos from this episode will be posted at Tim Kowal’s YouTube channel.