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Dissentals

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Scott Graham has this article in The Recorder (SF legal newspaper) on opinions dissenting from denial of rehearing en banc, with emphasis on the Ninth Circuit.  These opinions are also known by the shorthand term of "dissental," from "dissent" and "denial."

These opinions are often de facto certiorari petitions, thinly veiled requests for the Supreme Court to take the case up and reverse it.  They can be quite effective.  When Ninth Circuit judges Kozinski, O'Scannlain, Bea, or Callahan writes one, the Supreme Court grants certiorari 40% of the time, compared to an overall grant rate of about 1%.

The number of such opinions has declined in the last couple of years.  Judge Kozinski thinks that is proof of their effectiveness.  Judges are moderating their opinions so as not to draw a dissental and increase the chance of certiorari and reversal.

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Apropos, I've noticed that the Ninth Circuit seems to be upholding considerably more death sentences lately. It seems as if they're finally getting the message after repeated unanimous smackdowns by the US Supreme Court.

On another note, the Fourth Circuit hasn't been upholding any death sentences lately including the Teleguz case out of Virginia, which had seemed like a slam dunk for the Commonwealth.

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