Courts do odd things.

This is an amended opinion; we blogged the original last month. As is its practice, the court instantly removed that opinion from its web site; the internet never forgets, though, so we can compare the two.

As near as we can tell, the amendment does two things. It changes a minor factual point. And it adds a paragraph in which it briefly disposes of an argument the first opinion didn’t substantively address.

The District had presented no authority to support that argument, so the first opinion had considered it waived. The District’s Motion for Rehearing did offer some authority. The court amended the opinion to include it, explaining very briefly why it was wrong and did not change the result.

Apparently, then, you can un-waive a waived argument. This may come in handy when next you’re short of time to finish your brief. Just make that last argument or two and don’t bother to look up the cases. The court will call it a waiver but if you lose you’ll have time to get some cases and, with them, another bite of the apple.

Sarcasm aside, why did the court bother? If the District waived it, it waived it; if not, the court shouldn’t have said so in the first place. Have the courage of your convictions. Considering on rehearing a waived, minor (in the court’s eyes) argument that doesn’t change the outcome makes no legal sense, encourages bad briefs and motions for rehearing, does the court no good, and does these parties no good.