From: Michael Froomkin <froomkin@law.miami.edu>
Date: Sun, 19 May 1996 04:34:15 +0800
To: "Declan B. McCullagh" <declan+@CMU.EDU>
Subject: Re: (legal) Re: CDA Dispatch #10: Last Day in Court
In-Reply-To: <claeSc600YUz0uOjMH@andrew.cmu.edu>
Message-ID: <Pine.SUN.3.91.960518113457.2985C-100000@viper.law.miami.edu>
MIME-Version: 1.0
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On Wed, 15 May 1996, Declan B. McCullagh wrote:

> Speaking of appeals, I've been thinking about what happens with the CDA.
> Okay, so we have two court cases going on, the Shea v. Reno case in NYC
> and the coalition lawsuits combined in Philly.
> 
> What happens if the DoJ loses both the NYC and Philly cases and (as they
> said they would) appeals to the Supreme Court. Won't they take the
> weaker of the two cases, which is Shea's?

If they lose they are almost certain to appeal both cases.  If they don't 
appeal a loss, it means that plaintiffs won, i.e. get what they asked 
for.  The government isn't going to sit still for that while another case 
is proceeding.  

> 
> And what happens if we win but Shea loses -- does the DoJ appeal in
> Philly and Shea appeals in NYC?
> 

No problem with two sides each appealing different verdicts to the 
supreme court.  That's what it's for - to sort things out and make the 
circuits consistent.

> If we lose, does our appeal automatically go to the Supreme Court? The
> language in the statute is unclear here -- it only specifices what
> happens when the law is declared unconstitutional. But if it isn't,
> can't the DoJ argue that our appeal should go to the Third Circuit
> instead?

Sorry, I don't recall the language well enough and I'm on the road.  I 
thought it went to the Supremes no mater what; that's the usual practice, 
but i could be wrong.   there is a procedure for by-passing the Court of 
Appeal in urgent cases.  Also, if one case is on a slow track and the 
other one is on a fast track, there are procedures for getting involved, 
at least as amici, in the fast track case.

[I am away from Miami from May 8 to May 28.  I will have no Internet 
connection from May 22 to May 29; intermittent connections before then.]
 
A. Michael Froomkin        | +1 (305) 284-4285; +1 (305) 284-6506 (fax)
Associate Professor of Law | 
U. Miami School of Law     | froomkin@law.miami.edu
P.O. Box 248087            | http://www.law.miami.edu/~froomkin
Coral Gables, FL 33124 USA | It's warm there.