Today's Daily Journal includes my article, entitled "When Courts Disagree," in the Perspective column. It discusses with some interesting data my perception of a rift between the California Supreme Court and the lower courts of California. The article is posted below with permission of Daily Journal Corp. (2009).
If you have difficulty viewing the flash object, the direct link is here. I thank the editorial staff of the Daily Journal for quickly providing the posting permission.
Trenton H. Norris, a defense lawyer and partner at Arnold & Porter LLP, responded to my column with a letter to the Editor. In my opinion, Mr. Norris misleadingly chose to cast my column as an attack on the hard-working judges throughout California. I would take no issue with Mr. Norris stating, for example, that my construction of Cohen and Tobacco II is incorrect. But Mr. Norris, whose practice is devoted to advising and defending companies in regards to California's unique toxics and labeling law, Proposition 65, and California's expansive consumer protection laws, did not do that. Instead, my column was used as an opportunity to construct inaccurate statements regarding my views about the many judges of this state. Nothing in my column stated a lack of appreciation for the hard work that Courts do, and my blog has frequently noted those opinions where Courts were called upon to determine exceedingly difficult issues, doing so above the call of duty.
I want to be clear about the purpose of my column: I take issue with Courts that view Supreme Court decisions as irrelevant, a disturbing conclusion for any lower Court to reach. My column also notes that, based upon numbers of cases and statistics, there is a low probability that a lower Court will see any particular case reviewed. This fact, alone, eliminates recourse in most cases where a party views an appellate court's decision as inconsistent with controlling Supreme Court authority. It is also my belief, expressed through my column, that views about the utility of California's consumer protection laws have become increasingly polarized. Thus, Mr. Norris' disagreement is unsurprising. What is surprising is the way in which it was expressed.
As an advocate, I'm more than entitled to express the opinion that various Court decisions are not consistent with controlling law. In my view, Cohen is one such opinion that cannot be faithfully reconciled with Tobacco II. But that is just my opinion. I am confident that the vast majority of judges understand that the nature of their work necessarily results in disagreement over outcomes in most instances. I am also confident that the vast majority of judges appreciate and support my right to disagree with their rulings.