"When Courts Disagree"

Tuesday's Daily Journal had a "perspective" article, "When Courts Disagree," by H. Scott Leviant, author of The Complex Litigator.  The full text is available there. An excerpt:

The conclusions of the Kaldenbach and Cohen Courts that Tobacco II, a decision in which the California Supreme Court reversed [a] decertification order, raise two important questions. First, is there any evidence that lower courts are disregarding the legal holdings and policy mandates of the California Supreme Court in significant numbers, particularly in the class action context? Second, if there is such an occurrence, why are lower courts disregarding the legal holdings and policy mandates of the California Supreme Court?

UPDATE (11/16/09):  Attorney Trent Norris of Arnold & Porter has a letter to the editor in today's Daily Journal published under the heading "Comment on Judges' Motives is Cheap Shot" (subscription).  Trent was my co-speaker at the Recorder Roundtable on Tobacco II in July and presented (along with Will Stern) the defense perspective on the decision.   

Comments

[Steve Kane]

A more recent example of an appellate court ignoring California Supreme Court precedent appears in Evans v. Lasco Bathware, Inc., ___ Cal.App.4th ___ (Oct. 13, 2009; pub. ord. Nov. 6, 2009)noted and commented on below in this blog, in which the 4th District refused to apply the ruling in Sav-on.

[The Complex Litigator]

I note that, rather than responding to the premise of my column, Mr. Norris chose to construe my column as an attack on the hard-working judges throughout California. Nothing in my column stated a lack of appreciation for the hard work that Courts do, and my blog has frequently noted those opinions where Courts were called upon to determine exceedingly difficult issues and did so above the call of duty. Instead, I take issue with Courts that view Supreme Court decisions as irrelevant, a disturbing conclusion for any lower Court to reach. I then noted that, based upon numbers of cases and statistics, there is a low probability that a lower Court will see any particular case reviewed. Finally, as an advocate, I'm more than entitled to express the opinion that various Court decisions are not consistent with controlling law.