Motorola Mobility: A do-over

Last week I wrote about a pending Seventh Circuit case, Motorola Mobility v. AU Optronics, that I feared had gone procedurally awry — a simple request for an interlocutory appeal had turned into a merits opinion, a strange skirmish with the Solicitor General, and then a vacated merits opinion, without ever getting a normal course of briefing or argument.

I’m pleased to note that today, the Seventh Circuit ordered the case be set for brief and argument in the normal course. Whatever the merits of the appeal, that strikes me as a very good thing. Of course there are still plenty of unanswered questions, like whether the old motions panel or a new merits panel will be the one to hear the appeal; and whether future litigants need to try to fend off surprise summary affirmances in future interlocutory appeals. But those questions didn’t necessarily have to be answered at this stage, and at this point the case will hopefully become a “normal” appeal.

Will Baude is an assistant professor at the University of Chicago Law School, where he teaches constitutional law and federal courts. His recent articles include Rethinking the Federal Eminent Domain Power, (Yale Law Journal, 2013), and Beyond DOMA: State Choice of Law in Federal Statutes, (Stanford Law Review, 2012).

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Eugene Volokh · July 15, 2014