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The judge did, at least, decline rule one way or the other on a particularly pernicious argument the government raised for keeping this case out of court: the state-secrets privilege.
Having said that, it's likely that the Supreme Court would decide whether or not proponents have "standing" to appeal the case in federal court, and it's of course likely that the Supreme Court will rule one way or the other on the constitutionality of Prop 8. Beyond those key issues, Supreme Court review is typically limited to the issues raised in the court below.
Cubans acknowledge feeling frustration and confusion over the American justice system, puzzled that one judge may rule one way and another judge another way.
"Since the court didn't rule one way or the other, it will lead parents to ask for tuition reimbursement," said Julie Wright Halbert, legislative counsel for the Council of Great City Schools, who wrote a brief supporting New York City in the Freston case.
In others, the errors resulted from false or deeply flawed submissions made to the court by people or organizations seeking to persuade the justices to rule one way or the other.
Pollak said that he found it worrisome that the Supreme Court ruling in the Daubert case meant that he could rule one way on an issue like fingerprints and another federal judge in a different jurisdiction could do the opposite, and neither ruling would be reversed (the Court will hear appeals only on procedure, not on the law).
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Mr. Davies said that the city had never ruled one way or the other as to whether a campaign contribution constituted a "financial relationship".
"If you know that the courts have consistently ruled one way, and you don't want it in your order, then something's wrong," Mr. Berger said.
"They want to make the rules one way, and we say, 'No, if there is a piece of information, it is our job to go and get it.' " Then again, he said, "You could look at the strategy and say it did not work out, but in the end, they energized their campaign, added many thousands of names to their database and got huge mileage out of it".
A spokesperson for the Lee County Sheriff's Office told the Huffington Post that their department is treating this as a death investigation, and "have not ruled one way or the other" if this is a case of self-defense.
John DiCicco, the acting assistant attorney general for the Justice Department's tax division, told the panel that he was "not going to rule out one way or the other whether there will be prosecutions.
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Justyna Jupowicz-Kozak
CEO of Professional Science Editing for Scientists @ prosciediting.com