Wednesday, March 22, 2017

Litigation "Life Lesson" from Trump's Travel Ban

By Walter Whitman Moore

Trump would have won in the litigation over his travel ban if different judges had been assigned to his case. The Chief Justice of the United States Court of Appeals for the Ninth Circuit and four of his colleagues issued a dissenting opinion in which they argued that the Court of Appeals erred by refusing to let President Trump enforce his travel ban. 

On the Ides of March, the five justices filed a 26-page dissenting opinion, explaining why they believe the Court should have reconsidered "this case en banc for the purpose of vacating the panel's opinion." They summarized their position as follows:
The Executive Order of January 27, 2017, suspending the entry of certain aliens, was authorized by statute, and presidents have frequently exercised that authority through executive orders and presidential proclamations. Whatever we, as individuals, may feel about the President or the Executive Order, the President’s decision was well within the powers of the presidency, and “[t]he wisdom of the policy choices made by [the President] is not a matter for our consideration.” Sale v. Haitian Ctrs. Council, Inc., 509 U.S. 155, 165 (1993).
You can read their entire opinion by clicking here.

The litigation "life lesson" for you is that there is always an irreducible element of risk in litigation. No matter how strong or weak you think your case is, the outcome may depend not on the facts, the law, or the lawyers, but on the judges and justices assigned to your case. That is one reason that parties sometimes opt to submit their disputes to arbitration, where both sides pick the decision-maker.

Walter Whitman Moore is a business trial lawyer in Beverly Hills. His website is

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