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HALPERN, J., dissenting: I cannot join the majority’s
opinion for the following reasons.
I. Our Obligation as a Court of National Jurisdiction Is To
Decide This Case as We Think Is Right
Three strikes and you’re out! Is that the new rule?
According to the majority: “Suffice it to say that, in light of
the reversals of this Court’s decisions by three different
circuits, we now decide that we will accede to the result in
those appellate decisions”. Majority op. p. 16. Finding it
unnecessary “to winnow out the differences in our analyses in our
prior cases and those of the Courts of Appeals that have reversed
us”, id., and seeing “no reason in the instant case to adopt
either the rationale of the Fifth and Eighth Circuits, on the one
hand, or of the Sixth Circuit, on the other”, id., and with no
further analysis than that, the majority overrules a result that
we reached on three separate occasions and which, by virtue of
our role as a trial court of national jurisdiction, governed us
in cases appealable to 9 out of the 12 Courts of Appeals.
A judge is supposed to reach his or her opinion by a process
of “reasoned elaboration”, striving to reach what he (or she)
thinks is the right result.1 Because we are a court of national
jurisdiction, we face unique problems in dealing with the
opinions of the various Courts of Appeals. In Central Pa. Sav.
1 Hart & Sacks, The Legal Process: Basic Problems in the
Making and Application of Law 143-152, in particular 149-150
(1994); Schauer, “Opinions as Rules”, 62 U. Chi. L. Rev. 1455,
1465 (1995).
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