Thursday, July 25, 2002

The Eleventh Circuit is back in gear yesterday afternoon after several days without opinions. Two orders taking cases en banc, though neither particularly exciting from a real-world perspective. Here are my predictions for how they will come out, when the opinions are issued in a few months:

(a) Atlanta Journal v. Atlanta and consolidated cases is about First Amendment arguments regarding newspaper racks in the Atlanta airport -- the sort of case that first-year law students think that it would be really sexy to argue ("I'm a constitutional lawyer!") but are hard for me even to get excited about reading. The Court majority will (incorrectly, in my view) adopt a proprietary/governmental distinction as to the permissibility of (at least some) governmental regulation of speech, but will nonetheless affirm on other grounds the district court's decision in favor of the papers; and

(b) Wagner v. Daewoo, in which the en banc court will say that, upon affirming the grant of a motion to dismiss, the court of appeals doesn't have to remand to allow the plaintiff to amend the complaint if the plaintiff didn't seek leave to amend in the district court. The impact on everyone but Wagner and Wagner's lawyer will be minimal; we will just do what we've almost always done, which is to ask for leave to amend in the district court if we think that we could justifiably make the crucial allegations that would allow the case to proceed.

posted by sam 7:26 AM 0 comments

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