Judge Niemeyer's dissenting opinion in McMellon v. U.S. on how a later panel is to resolve apparent conflict between two earlier panel decisions has drawn some criticism from here from How Appealing and here from its readers.
The gist is whether the later panel can pick whichever rule it likes best, or must go with the first one. Howard Bashman thinks the best outcome would be for the case to be reheard en banc, which seems likely enough since the government was the loser in the case and the majority opinion by Judge Traxler might well be wrong on the merits of the "duty to warn" issue, regardless of how the sovereign immunity issue plays out.
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