Brady's legal team expands

[AtomicDawg]

How does a judge who we know is going to rule against Brady help him?

7 out of the 13 active judges (including the chief judge) must be persuaded to entertain rehearing en banc.

 

[VectorPrime]

7 out of the 13 active judges (including the chief judge) must be persuaded to entertain rehearing en banc.

Wouldn't Parker be a sure 'no' vote so that his ruling isn't put at risk?

 

[AtomicDawg]

Wouldn't Parker be a sure 'no' vote so that his ruling isn't put at risk?

Parker doesn't vote on whether or not to rehear en banc under the 2nd Circuit IOC. Wallach says Parker would only be on the en banc panel, not the one to decide it gets heard.

 

[RobertWeathers]

Its always nice to dream about happy outcomes but if these guys decide to rehear this there will be a collective, "Oh ****" heard at 345 Park Ave.

 

[VectorPrime]

Parker doesn't vote on whether or not to rehear en banc under the 2nd Circuit IOC. Wallach says Parker would only be on the en banc panel, not the one to decide it gets heard.

I must be missing something than because I still don't get how Parker being involved in either thing is a good thing for Brady. I would understand if he was an unknown but we know he's voting against Brady. So he could conceivably turn a 7-6 win into a 7-7 tie. Which still goes Brady's way but it doesn't help him.

 

[JMC00]

So he could conceivably turn a 7-6 win into a 7-7 tie. Which still goes Brady's way but it doesn't help him.

I think Wallach is just making the point of what it means if it is heard and the decision is split. That it is an advantage for Brady, not the nfl.

 

[SHOWTIME15]

You had to know you'd get hit for this one. LOL

But I do understand your point and would not disagree with it.

Don't get me wrong - ted olson helps, but he can't wave a magic wand to have an en banc hearing. The odds increased a little, but i wouldn't get TOO excited. He is a very persuasive attorney so I'm hoping for the best.

 

[AllstonPatsFan]

As an attorney I can tell you all that Olson is a legendary figure in appellate litigation. He commands a lot of respect from people across the ideological spectrum. This is a big time get for the Brady team.

I can't think of many higher profile people he could have brought on board. Clearly sends a message that the NFLPA is taking this very seriously. This can only help his chances because every single judge or justice that might be considering hearing this case knows exactly who Ted Olson is.

Very happy with this news.

 

[SHOWTIME15]

Parker doesn't vote on whether or not to rehear en banc under the 2nd Circuit IOC. Wallach says Parker would only be on the en banc panel, not the one to decide it gets heard.

Correct. Parker is in senior status, so only 13 active judges can vote on an en banc hearing. Thus, brady has to get 6 more votes (including katzman for a total of 7 yays) for an en banc appeal. Then he has to get 8 out of 14 votes to overturn the panel.

Interesting question - would the en banc court be deciding to uphold berman's decision or the panel decision? The difference is important. If it's 7-7 tie then whichever ruling they are deciding on is upheld.

 

[SHOWTIME15]

As an attorney I can tell you all that Olson is a legendary figure in appellate litigation. He commands a lot of respect from people across the ideological spectrum. This is a big time get for the Brady team.

I can't think of many higher profile people he could have brought on board. Clearly sends a message that the NFLPA is taking this very seriously. This can only help his chances because every single judge or justice that might be considering hearing this case knows exactly who Ted Olson is.

Very happy with this news.

If it goes to the supreme court, you will have olson v. clement, two former bush administration solicitors general pitted against one another.

 

[JMC00]

Correct. Parker is in senior status, so only the 13 active judges can vote on an en banc hearing. Thus, brady has to get 6 more votes (including katzman for a total of 7 yays) for an en banc appeal.

I think there is a slight chance he has the 7. Katzmann, Cabranes, Pooler, Lynch, Lohier, Carney and Droney

 

[JMC00]

Interesting question - would the en banc court be deciding to uphold berman's decision or the panel decision?

Wallach said it would mean Berman decision affirmed

 

[SHOWTIME15]

I think there is a slight chance he has the 7. Katzmann, Cabranes, Pooler, Lynch, Lohier, Carney and Droney

thanks, i am just a patent attorney so i don't know the judges on that court well.

 

[SHOWTIME15]

Wallach said it would mean Berman decision affirmed

that could be big. if the same judges who vote to grant the en banc hearing also vote to uphold berman then it's a win for us.

 

[RobertWeathers]

As an attorney I can tell you all that Olson is a legendary figure in appellate litigation. He commands a lot of respect from people across the ideological spectrum. This is a big time get for the Brady team.

I can't think of many higher profile people he could have brought on board. Clearly sends a message that the NFLPA is taking this very seriously. This can only help his chances because every single judge or justice that might be considering hearing this case knows exactly who Ted Olson is.

Very happy with this news.

Whos better? Clement or Olson?

 

[AllstonPatsFan]

Whos better? Clement or Olson?

Hard to say but Olson has been around a long time. I believe he worked for Reagan's justice department. He's more experienced at the Supreme Court level.

Politically he's a strong Republican but he has argued and won some pro gay marriage cases that have won him respect from the Democrats in recent years.

 

[YOUGOTMOSSED]

Agreed. I've very liberal and in general did not like Scalia at all, but a) I'm not a fan of celebrating death, and b) I agree that it's not inconceivable that he might have been sympathetic to Brady's case here. I really, really doubt it, but it's at least possible.

Yes, I know liberals perceive Scalia as a "big meanie" with "no respect for women's rights" (or whatever) but, if you look at his decisions regarding due process, he tends to use an analytical model based on tradition.

I can envision a decision from him opining that Brady's due process rights to "confront his accusers" and "review discovery documents" have deeper and stronger roots in legal tradition than any notion of "deference to an arbitrator" (which is based pretty much entirely on notions of expediency).

Scalia may not have been a perfect model of consistency but I can envision a pro-Brady decision consistent with how Scalia usually views cases.

Other law nerds, feel free to chime in.

 

[JMC00]

thanks, i am just a patent attorney so i don't know the judges on that court well.

Little side note one of the judges that I don't think would grant the en banc (Bush appointee) was an associate at Paul, Weiss aka the firm that was hired to frame Brady.

In fact it was the only firm she worked for.

 

[QuantumMechanic]

Correct. Parker is in senior status, so only 13 active judges can vote on an en banc hearing. Thus, brady has to get 6 more votes (including katzman for a total of 7 yays) for an en banc appeal. Then he has to get 8 out of 14 votes to overturn the panel.

Interesting question - would the en banc court be deciding to uphold berman's decision or the panel decision? The difference is important. If it's 7-7 tie then whichever ruling they are deciding on is upheld.

When federal circuit court grants en banc review the panel's decision is vacated, as I understand it. En banc review is doing the appeal all over again. I'm pretty sure it is de novo with respect to the panel decision. It's as if the panel decision never happened. Or as if the appeal from Berman went straight to CA2 sitting en banc in the first place.

Thus a tie preserves the decision of the court below (i.e. Berman).

 

[SVN]