Unused and Probably Unusable

Howard has been all over the Ninth Circuit decision involving Yahoo!, French anti-bigotry groups' attempts to prevent the online auction of Nazi memorabilia (by La Ligue Contre Le Racisme et L'Antisemitisme), the First Amendment, personal jurisdiction, and, oddly enough, counting to 6.

The result: an example of apparent paradox. There were two ways of reaching the result that favored Yahoo!; in both cases, there was a majority (by counting) of the voting judges who believed the issue should be resolved in Yahoo's favor. But because of the way the opinions lined up, dissenting judges on one issue added to dissenters on the other produced a majority in favor of Yahoo!'s defeat.

This sort of thing would generally not be countenanced in a jury verdict. I would have thought that in order to decide two issues it would have to be done one at a time. If the decisionmaker rules there was no personal jurisdiction, the analysis should stop at that point. If there is such jurisdiction, then that ground should fail. If at the next stage of inquiry it is decided that the controversy is not ripe, again you stop; if on the other hand you have (for a panel of judges) a majority, then how do you justify this kind of result:

As Justice Felix Frankfurter's dissenting opinion concludes, "A substantial majority of the Court agrees that each of the two grounds urged in support of the attempt by Congress to extend diversity jurisdiction to cases involving citizens of the District of Columbia must be rejected-but not the same majority. And so, conflicting minorities in combination bring to pass a result-paradoxical as it may appear-which differing majorities of the Court find insupportable."

How Appealing, passing along a quote from the 1949 Supreme Court case of National Mutual Insurance v Tidewater Transfer Co (opinion).

I guess it goes to show: judicial decisions may not be path dependent. Even if neither of the two possible ways that the court could have reached that result are supported by a majority of the judges voting, the majority-by-numbers outcome can still win. Sounds like a quantum-physical spooky outcome to me.

update: Since those last few words drew some interest...

In quantum physics, an electron doesn't always act like a particle, with a discrete mass and well-defined location. In fact, you can't ever narrow down both the location and the momentum of an electron below a certain limit - that's Heisenberg's uncertainty principle. It doesn't always act like a wave, either; when it hits a detector, it looks particle-like. Particulate, you could call it. Thus, the so-called wavicle paradox. Paradoxical only because in our ordinary experience, an object (at the everyday, human scale) can only pass through one of two slits at a time on its way from here to there. A wave, if it passes through both at once, can't be a particle. But at the quantum level, things are different.

One of the differences is that you get the counter-intuitive, almost spooky result that events are probabilistic, and the likelihood of the overall outcome being one particular way depends on the concatenation of the likelihood of all the possible paths that lead to that outcome.

In counting votes, as in calculating electron flight-paths, it's the ultimate result of the calculation, not all the sub-steps, which provide the overall result.

And yet, if you really want to know what the holding of the case is, you have to look at the substeps; is there personal jurisdiction or ripeness under these facts? Well, check the opinion-breakdown on that issue alone.

Takeaway: the law in the 9th Circuit on Yahoo's case is favorable on both issues, and it loses anyway. Sometimes the world is stranger than we can understand.