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July 31, 2009



It is an overstatement to say that these counsel appointments happen "when a party decides it no longer wants to argue in favor of or against a lower court decision that is on appeal." Generally, if a party flips its position, it can just give up and settle the case, and that situation comprises the great majority of cases involving positional flips. So, the government can confess error, and work out the relief. The problem arises when the lower court says it lacks jurisdiction (authority) to do what the losing party wants done. Then, if the winner flips its position, there may be nothing that can be done to get the loser relief. That's what happened in this case.

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