Posting on "demon-spawn" cases

One of the law blogs I follow to keep up with developments in class actions in federal courts is the McGlinchey Stafford CAFA Law Blog.  I have just not been able to get one recent post on the subject of posting on courts' decisions out of my head, and finally thought I'd pass it along, because I couldn't say it better if I tried:

Here at CAFA Law Blog, we try to maintain a neutral approach to the courts’ treatment of CAFA, trying our hardest to love all CAFA decisions and treat them as God’s precious little creatures. We admire them, classify them zoologically, and generally accept them for all of their differences and occasional imperfections.   But every so often we discover a new demon-spawn of a case that, well, just makes us say WTF?"

(Refer to the post for what WTF means -  although in this context it ought to be pretty obvious).  Having said that, I have to say that I don't run into this problem very often posting on recent ED courts' decision.  That's not just sucking up to our judges (not that I wouldn't, mind you) because they sure blow some rulings from time to time (mostly when I lose).  It's just that the opinions that I post on are almost always reported ones, so they've already been vetted by the judge in question for publication, so they're even less likely than your average ruling to be wrong on something major.  I've seen a few that I kept my fingers crossed that they would not be published because I really thought  the court got it wrong, and in most cases I've been lucky that I haven't had to post on one of those headscratchers.
One the ones that I do post on, two other things combine to usually eliminate this problem.  The first is that most of the decisions district courts make are highly discretionary, so it's very difficult to point to a decision and say that the judge just got this one wrong, given the discretion the court has.  The second reason is related, and that's that reading almost any opinion you just can't say that the court made the wrong call because you don't know all the facts - and never assume that all the relevant facts are in the opinion.  Maybe they did and maybe they didn't, but to say one way or the other is often no more than an uninformed opinion that does no more than reflect your biases about who should win on particular issues.  A good example is decisions on whether to allow a party to amend their infringement or invalidiuty contentions in patent cases.  That decision is highly discretionary and depends on a lot of facts that may not be in the opinion - maybe those facts support the ruling and maybe they don't, but as a reader (as opposed to a ticked-off attorney in the case who just knows the judge is overlooking the obviously critical facts) I just don't know enough to say that the ruling is wrong.   So I note it and the reasons given, which are what we all use to  try to figure out what the judge is going to do in the next case.
Now I don't know why, but I just have no compulsion to come up with an uninformed opinion that a court's discretionary decision was a blown call.  Maybe it's intellectual honesty that I just don't have the facts to support an opinion, or maybe it's just that my opinion-generating module blew a fuse somewhere back, but whatever the reason, I am just too damn lazy to decide who's right and pontificate on it.  (I do know how to pontificate - I am Catholic, after all - but around my house pontificating has the same relationship to celibacy that it does for the pope, so I avoid it at all costs, and assume my traditional role as first sergeant and yell at our three boys to do what She Who Must Be Obeyed said and do it now, before she gets mad at me).
Now appellate opinions are a different animal.  I completely sympathize with CLB's problem with those because I moonlight as editor of Jones McClure's O'Connor's Federal Rules (in which capacity I am spending my weekend going through piles of cases figuring out which we need to add to the 2008 edition, why is why the length of this e-mail constitutes exhibit 1 that I am a world-class procrastinator) and I have seen hell-spawn cases on occasion.  Some of these you can attribute to legitimate circuit splits (and some the court just leaves out the facts that would contradict the holding - after all, it's the winners that get to write the history books, after all), but sometimes you just look at a case and cannot figure out how to write down what this case means, as CLB was trying to do in this case. 
Best example of this I've seen was four years ago when the Fifth Circuit decided that the one-year prohibition on removal in 28 U.S.C. §1446(b) is discretionary.  In Tedford v. Warner-Lambert Co., 327 F.3d 423, 428-29 (5th Cir.2003) the Fifth Circuit created an “equitable exception” to §1446(b) when a plaintiff attempts to manipulate the rule and prevents a defendant from exercising its removal rights.  Well, how do you put that in a case book?  The statute says there's a one-year limit.  But this circuit says that doesn't apply if it doesn't want to apply it.  WTF? What's next - I literally can't make up a sillier illustration of an appellate court deciding it doesn't have to follow a statute when it doesn't want to.  (This isn't the only example I could cite of the Fifth Circuit adding exceptions to the plain language of statutes when they apparently dislike the outcome the statute would require, but it's the best illustration of the problem CLB ran into.  Bad facts make bad law, but bad law is even worse - see below.  By the way, the plaintiff's attorney's conduct in that case - if true - was sanctionable as fraudulent and the court could have addressed the issue using its sanctions  power to avoid an unjust result in that case without screwing up the removal statute to do it. 
Making the issue even more complex in this case is the Supreme Court's recent statement in Bowles v. Russell,  ___ U.S. ___, 127 S.Ct. 2360, 2366-7 (2007) that it has no authority to create "equitable exceptions" to jurisdictional requirements, so use of a doctrine that does so is illegitimate.  A guy got executed in Bowles as a result of the Supreme Court's insistence that the rule be enforced as written, despite the fact that it was the district judge that misinformed the decendent as to how long he had to file an appeal, so whether you agree with them or not, they're serious about this, and it (presumably) is the law.  But if a court's not going to follow a statute when they don't like the result, what are the odds they'll follow the Supreme Court's statement that writing in exceptions to statutes isn't allowed, even when the exception makes sense to the court?  (Not that Congress doesn't need help making sense, but I thought courts weren't supposed to touch up Congress' work when they think a different policy decision should have been made.  As Justice Scalia said this summer, "As far as the Third Branch is concerned, what the text of [the statute] indisputably does prevails over what it ought to have done.  Powerex Corp. v. Reliant Energy Services, Inc., 127 S.Ct. 2411, 2420 (2007) (emphasis mine - but it's how he would say it).  After all, a defendant's removal rights are at stake here, not just someone's life - this is serious stuff! 
What I'm saying is that I know how to play rock, paper, scissors, but I am having a hell of a time trying to figure out what the rules even are when courts aren't following the statutes (much less the cases) that make up the rules. Theoretically, it's as simple as figuring out what the court would like to do if it had its druthers (no matter what Congress or the courts had previously opined), and assuming that they'll do that no matter what the law says.  But in practice, even assuming that, it still complicates things tremendously, because sometimes you can't figure out what rules are still rules, because there's no rule on that.  And then - just to complicate things further - sometimes you actually convince them to follow the law when they didn't want to - which screws everything up, because you sure weren't planning on that happening!  Now try to organize your positions in a case in some sort of logical order in light of all the above, keeping in mind that you may need any given position on appeal, including positions you know are wrong if the court follows the law (keeping in mind that you're analyzing both what the district court should and will do and what the appellate court should and will do), and you see the problem.  It's like algebra with too many variables.
So I know what's CLB is saying - I'm just glad that I don't run into this problem very often.  At least on this web log.