JUDICIAL GAMESMANSHIP: From the Left, the law is what we say it is until we change our mind.

Automatic vacatur of a three-judge panel’s opinion may seem like a minor procedural process, but, as Judge VanDyke noted, it “creates perverse incentives for government defendants.” When the Ninth Circuit grants en banc rehearing, it provides an opportunity for government defendants to amend the challenged law so that it can not only evade review, but the government also gets the added benefit of taking the prior panel opinion finding their action unlawful off the books.

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