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Following my previous post about the weight given to district judges sitting by designation, what do we make of judges from other circuits sitting by designation?

I was reminded of an opinion from the 9th Circuit, authored by Judge Cudahy, a 7th Circuit judge. In MetroPCS, Inc. v. City & Cnty. of San Francisco, Judge Cudahy adopted a more deferential interpretation of a provision of the Telecommunications Act, called the “least intrusive manner standard.”

In discussing precedents from other Circuits, Judge Cudahy had occasion to comment on the 7th Circuit’s prevailing law. He said it was “too exacting.”

On the other hand, the First and Seventh Circuit requirement that a provider demonstrate that its proposed facility is the only viable option seems too exacting.

In case you were wondering, the opinion he disagreed with was by Ripple, joined by Wood and Evans.

I wonder how common this is? That’s one way to dissent from your own circuit’s precedents—sit on the Ninth Circuit by designation.

Update: Will H. on FB notes that in McCoy v. Chase Manhattan Bank (CA9, 2009), Judge Cudahy, sitting by designation dissented, disagreeing with the First and Seventh Circuits. The case went up to the Supreme Court, and Justice Sotomayor reversed the 9th, agreeing with Cudahy. Cudahy FTW!

Ouch.

MR. CLEMENT: Well, a couple of things, Justice Sotomayor. I went back to the Tropiano case, because it is sort of the pro genitor of this whole line of Second Circuit cases, and I noticed two things. One, I noticed it was written by a district court sitting by designation. So, I mean, I — I don’t mean anything by that other than this is not Marbury. Second, I would say that the second thing I noticed is that the debt -­

JUSTICE SOTOMAYOR: Oh, I think when I sat as a district court judge, I would have been insulted by that.

MR. CLEMENT: Well, it’s not — it’s a good thing you’re no longer sitting in that capacity, Your Honor -­

JUSTICE SOTOMAYOR: Okay. It’s really -­

MR. CLEMENT: — because I — I certainly mean you no offense. You could write Marbury here. So the — the difference is, Your Honor, that that could have also been, I think, actually prosecuted as a property crime, because in that case

In my clerking experiences, it was not unheard of to give less weight to an opinion written by a visiting judge. You just weren’t suppose to acknowledge it…to a judge who sat by designation…who now sits on the Supreme Court.

I can’t wait for the audio on this one.

H/T Adam Liptak

The opinion is here.

Here is the introduction:

Defendants Ashley Nicole Richards and Brent Justice (collectively, “Defendants”) were indicted on five counts of violating the federal “animal crush video” statute, 18 U.S.C. § 48 (effective Dec. 9, 2010). Pending before the court are Brent Justicef s Motion to Dismiss (Docket Entry No. 29) and Ashley Nicole Richards’ Motion to Dismiss (Docket Entry No. 30). Defendants contend that § 48 abridges the freedom of speech protected by the First Amendment to the United States Constitution. For the reasons explained further below, the court agrees. The court will there- fore grant Defendantsf motions to dismiss.

And the conclusion:

The acts depicted in animal crush videos are disturbing and horrid. But “[tlhe history of the law of free expression is one of vindication in cases involving speech that many citizens may find shabby, offensive, or even ugly.” Plavbov, 120 S. Ct. at 1893. The court concludes that the speech proscribed by § 48 does not fall within either categorical exclusion invoked by the United States. Furthermore, the court concludes that § 48 cannot withstand strict scrutiny and therefore abridges the freedom of speech protected by the First Amendment.

Politico reports that this is the first case brought under the revised crush statute since Stevens.

Justice Scalia opines on this sacred institution in Sekhar v. United States.

JUSTICE SCALIA: Why — why isn’t that property? Why. You know, my — my choice of marrying whom I want, why isn’t that as much property as — as my ability to — to perform my job the way I want?

MS. HARRINGTON: Because it’s — I think it’s more properly viewed as a liberty interest. It’s not a source of economic value in the sort of traditional sense. I think if you take the Scheidler case –

­ JUSTICE SCALIA: A lot of people marry for money. (Laughter.)

MS. HARRINGTON: It’s true. I walked into that one.

A few days ago I queried whether the state could have used a drone to kill Tsarnaev, and wondered what Rand Paul would think. Now we know.

Apparently, Rand Paul is okay with a drone killing a suspect on the loose:

“Here’s the distinction, I have never argued against any technology being used against having an imminent threat an act of crime going on,” Paul said. “If someone comes out of a liquor store with a weapon and fifty dollars in cash I don’t care if a Drone kills him or a policeman kills him, but it’s different if they want to come fly over your hot tube, or your yard just because they want to do surveillance on everyone, and they want to watch your activities.”

Due process, schmue process. This is very disappointing from Paul. Too bad Rand doesn’t stand with Rand.

Update: I think I have have misunderstood the import of Rand’s comment, as pointed out by several helpful commenters. To the extent that an officer on the ground would be justified in using lethal force against an imminent threat, I don’t know that there is any constitutional difference than a drone doing the killing. Though, the policy implications seem somewhat different. An officer on the ground would himself be at risk. The drone is safe and sound in the sky. But the objections are sound. Let me give this some more thought. A practical difference is that a bullet from an officer, or sniper, can be used  in a nonlethal manner (unlikely). Can a hellfire missile be used in a nonlethal way?