Monday, April 14, 2008 - Posts
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I tend to agree with Kenji that the overt
mixing
of poetry and law can be ill-advised: adding the former often will
not enhance analysis in the latter. Yet the deployment of poetry – or any
literary reference, for that matter – serves to reveal something about the
legal writer who deploys it. Justice Harry A.
Blackmun's homage to Casey
at the Bat, no less than Chief Justice William H.
Rehnquist's tribute to
Barbara Frietchie in the 1st flag-burning case, told much about each
author's approach to the subject matter at bar. Some observers may not welcome
what is revealed; these 2 examples, for instance, might be seen as evidence that
a Justice lacked detachment and thus engaged in less than rational reasoning.
(That conclusion is not inevitable – consider those studies that refute the
commonly held assumption that emotion clouds jurors' judgment.) Adding
literature to law may serve, moreover, to make more humanly accessible a process
seldom understood by those humans whom it most affects.
Kenji's right, too, that the
best
law poetry may be those lines that we commit to memory not because of some
intentionally catchy cadence, but rather because their simplicity belies a
deeper social meaning. The warnings set forth in
Miranda
v. Arizona surely qualify. Another nominee jumps to mind. It is the
essence of another opinion by Chief Justice Earl Warren, a line on which
Brown v. Board of
Education and all its progeny depend. If I may be indulged a bit of
verse, it is:
Separate
educational facilities
are
inherently unequal.
As for
W., the
verbal contributions that Kenji cites link this President with another
W. besides Shakespeare. To this ear, the inestimable "
misunderestimate"
inevitably recalls "
normalcy,"
the once-abnormal word for which America owes a debt to President
Warren G.
Harding.
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Deb, I'm puzzled by your argument that John Yoo's OLC memos are somehow inconsistent with prevailing academic standards. You write that it is "painful to accept that one of the top law schools in the
country embraces the idea that one of its professors could teach
students a course in Introduction to Constitutional Law while advancing
a view of the Constitution that is simply without support in text,
history, logic, or life."
But isn't this true for lots of law schools, and lots of law professors? As I see it, what makes Yoo's memos so remarkable is precisely how much they resemble con law articles that you might read in law reviews. Most legal analysis on "hot button" con law issues found in law reviews is blatantly result-oriented. The entire idea is to come up with a clever argument for why the law is what the author wants the law to be. If the argument had support in traditional sources, then there would be no need to write an article on it. (To be clear, I'm not defending this practice: But that does seem to be quite common.) Yoo's memos were similar; they read like the work of a professor who has picked the result and is trying to fit the law to it without much succeess.
From that perspective, what makes Yoo's work so deserving of condemnation is that it settles for prevailing standards of academic legal scholarship instead of real, honest, serious doctrinal analysis. Yoo should have known better: OLC is no place to act like a law professor.
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With all due respect to Chris Edley, whom I admire, and the University of California, to which I owe a great deal, I think
Edley's position on John Yoo gets it exactly wrong
—and epitomizes why people deride the "Ivory Tower" as insulated from reality.
Law schools have an obligation to do more than teach lawyers to offer legal advice without regard for the
consequences of their counsel. I also think that law schools ought to model behavior for their students and think very seriously about the pedagogical impact of retaining a man on the faculty whose legal advice and scholarship produced such disastrous
policy, to say nothing of the suffering of
those on the receiving end of Yoo's ideas.
And I think Edley's position wrongfully absolves lawyers, and the legal academy, of responsibility for when they get things wrong
—or when their counsel produces terrible outcomes. As my colleague Deborah Pearlstein
points out, we wouldn't accept that result in molecular biology or medicine or many other disciplines. I don't think we should accept it in the law, either
—not in practice and not in law school, either. Academic freedom should not be a dodge for personal or professional responsibility.
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A New York Times editorial, citing a recent study, complains that Supreme Court nominees don't tell the truth during their confirmation hearings, which makes it hard to predict how they will behave on the bench. The study measures the degree to which a nominee expresses a commitment to respecting precedent during confirmation hearings and finds little relationship between that measure and the actual propensity of that person, once confirmed, to respect precedent. The Times is troubled: "Supreme Court nominees present themselves one way at confirmation hearings but act differently on the court. That makes it difficult for senators to cast informed votes or for the public to play a meaningful role in the process."
But, as the study notes, there is a correlation between ideology and willingness to overturn precedents: The five more-conservative members were those who were more likely to overturn precedents. There is a simple reason for this. The conservative Rehnquist Court inherited the liberal precedents of predecessor courts, especially the Warren Court. We know from other studies that justices tend to vote their political preferences. So if Republican justices are to vote their political preferences, and the precedents that they inherit are liberal, they are going to have to overturn those precedents.
The New York Times has little to complain about. It is easy to predict how nominees will vote once they are on the court. Just look at their party membership and other evidence of their ideology and ignore what they say at their confirmation hearings.
See also Volokh.
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