More Obnoxiousness from Leiter

In a post that seems largely dedicated to further solidifying his status at the lefty blogosphere's most obnoxious and arrogant member, Brian Leiter has this stupidity:

Is there hope for the blogosphere after all?

No, probably not.

Of course each word of the "No, probably not" is cleverly linked to a conservative blogger. Even putting aside the general tenor of the post, which seems to be that only people with doctoral degrees are qualified to talk about anything publicly (and a Ph.D. in political science from Stanford doesn't count), what is the logic behind pointing to a few conservative blogs as evidence that there is no hope for the blogosphere? Is there any hope for academia? No, probably not. See how clever I am?

Mr. Geidner's Unjustified, Unwise Attacks

En Banc co-blogger Chris Geidner has stirred up a mini-controversy with his recent Findlaw column criticizing three law professors "for comments they have made supporting a civil-union compromise in Massacusetts." In particular, Chris criticized Harvard Law Professor Laurence Tribe for telling the Massachussetts legislature that "civil unions might be enough to flip one of the justices in the majority, in the wake of political leaders' outcry against full-blown gay marriage."

Well Professor Tribe has objected to Chris' portrayal of the events, and Chris has written a response. What is most interesting to me, and not available to Professor Tribe unless he is a longtime reader of this blog, is how closely Chris' criticism of these professors tracks his attack on Professor Volokh as being either a "cowardly lion or irresponsible academic."

I'm going to lay out why Chris' reaction in both cases is unjustified, but I'd also like to suggest that, even if somehow justified, the reaction is unwise.

Court Orders Transfer to Civilian Authorities for Padilla

CNN has this breaking news:

Federal appeals court rules terror suspect Jose Padilla must be released from military custody as an enemy combatant within 30 days but may be transferred to civilian authorites.

Intriguing. Howard Bashman has the details, but the thrust of the 2-1 decision by the 2nd Circuit seems to be this:

The President does not have the power under Article II of the Constitution to detain as an enemy combatant an American citizen seized on American soil outside a zone of combat.

For those of us taking our Foreign Relations Law exams tomorrow, this is a tremendous decision that could even subvert one or more of the professor's questions (as well as having some impact on Padilla). The courts have been incredibly reluctant to impose restrictions on the President's foreign relations power under Article II, but it appears that three areas were important to this court: 1) citizenship of defendant; 2) location of capture; 3) lack of explicit Congressional authorization:

What to Do With Saddam?

I am absolutely delighted with this morning's news. Any day a man as wicked as Hussein is brought to justice is a good day. One of the big questions remaining to be answered is what form of justice Hussein will face. Here's a story detailing the potential for an Iraqi War Crimes Tribunal, likely modeled after those we've seen in Rwanda and Yugoslavia. My girlfriend suggests a pit filled with starving wolves, and I have trouble arguing with that.

Burdens of Proof in the Blogosphere

Now that my evidence exam is a couple days behind me, I am able to allow that subject material back into my system without getting nervous twitches. I've been thinking that the rules regarding burden of persuasion and burden of production might serve as a good proxy/analogy for looking at the tenor of debate in the blogosphere (and elsewhere).

Rehnquist's Legacy

There was a lot of speculation last year, and earlier this year, about why Chief Justice Rehnquist didn't retire now that a Republican was in office. One of the arguments suggested that Rehnquist was not finished securing his legacy, that he saw a number of controversial and unfinished issues that he wanted to have a role in.

Well reasonable people can differ, but I'd say Rehnquist must be pretty damned disappointed. He lost in Lawrence v. Texas, he lost in Grutter v. Bollinger, and he lost today in McConnell v. FEC. Somehow Rehnquist has, after 17 years as Chief Justice, managed to position himself in the minority on the biggest cases of his last couple terms. I even thought he'd vote in the majority in Lawrence, so sure was I that Rehnquist couldn't possibly want to exit the court in the minority on that case. So what can we gather? Perhaps Rehnquist doesn't care about being in the minority, or doesn't care about this so-called "legacy." Maybe he views his legacy in terms of jurisprudential consistency rather than "winning cases." Or perhaps he has just badly misjudged the leanings of his court on these issues.

Supreme Court Upholds 'Soft Money' Limits

FOXNews is running this Breaking News headline: "Supreme Court Upholds 'Soft Money' Limits." For details on this case (McConnell v. FEC) check here.

UPDATE: The CNN story has better details. Calling the court "sharply divided", it says Justices Stevens, O'Connor, Souter, Ginsburg and Breyer formed the majority to uphold the soft money ban and the pre-election ad restrictions. Very interesting! I'll be back with more once I've read the opinions.

UPDATE II: Ok, scratch that. There is no way I'm reading the majority opinion. It is 119 pages long and I'm in the middle of finals (the ruling as a whole is 300 pages). If you want to read them yourselves, you can find it here, and I'm sure we can expect excellent coverage from Rick Hasen. A cursory review of court-watcher expectations suggests that, once again, O'Connor proved to be the decisive vote (and once again helped write the decision).

UPDATE III: Am I the only one that feels like this is pretty anti-climactic? I mean, back when people thought McCain-Feingold would actually help reduce the flow of money to campaigns (did anyone believe that?), this case seemed like it would be a big deal. It would be the lynchpin that might either restrict or unleash the flow of a lot of money. But as we've seen, the new law simply channelled the money into new "unaffiliated" groups (Soros et al) and increased the ability to raise hard money. So while this case could certainly prove important for our understanding of campaign spending limits and the First Amendment, I think it had become less important and urgent in terms of the current election cycle (which is why it had been fastracked to SCOTUS). Anyhow, I'm sure it'll provide interesting classroom fodder for Lillian BeVier when she teaches me Speech and Press next semester.

Blogging Reagan Pt. II

I forgot to mention earlier that one of the inspirations for my interest in Ronald Reagan was Stephen Ambrose's discussion of writing a biography of Richard Nixon. In To America, Ambrose relays (via the acknowledgements to volume three of the biography) the effect that trying to understand Nixon had upon he and his wife:

The funny thing is, the more she got to know Richard Nixon, the less she liked him, while as for me, well, in volume one I developed a grudging admiration for the man. . . . In volume two I came to have a quite genuine and deep admiration for many of his policies. . . . And in volume three I found, to my astonishment, that I had developed almost a liking for him.

While I'm clearly not planning to become a presidential biographer, I do want to emulate the most important aspect of Ambrose's Nixon project: giving the subject a fair shake. I'm open to the possibility that I may end up hating Reagan, and the possibility that I may end up liking him. That said, I'd like to relay a couple of things from Noonan's book that I did really like.

Blogging Reagan, Pt. I

In what I hope will be a long running series of blog posts, I'd like to start taking a look at who Ronald Reagan was, what he stood for, why he was so popular, and what role his policies and popularity continue to play today. I approach this project not as a partisan trying to bring Reagan down, but as curious American seeking to understand one of the most important and powerful figures of the last half-century, a man who continues to be held in tremendously high esteem by a significant segment of the population.

In large part, this stems from my own ignorance regarding Reagan. I was born just a few months before he defeated Jimmy Carter and won his first term. I was 8 years old when he left office. So my own political consciousness was mostly non-existent while Reagan was in the limelight. Yet it was recent enough that Reagan's legacy is not yet clear. As such, I'd like to make an honest attempt at understanding Reagan, on his own terms, from the perspective of his critics, and from the perspective of his supporters.

Understanding Reagan

Apropos of the recent controversy over the Reagan mini-series, and a brief glimpse I had of a Reagan documentary on A&E, I started feeling rather ignorant about our 40th President. I've become more and more convinced that large segments of the American populace (mostly Republicans I would assume) still consider him the model president. As such, I think one way of understanding our current head of state and his sometimes inexplicable popularity might be to consider how closely he emulates Reagan. For those longing for another Reagan, GWB might be, well, close enough.

Anyhow, this is entirely speculative, particularly since I know so little about Reagan or what made (and continues to make) him so popular. In an effort to begin remedying that ignorance, I've picked up Peggy Noonan's When Character Was King, and will begin reading it as soon as this afternoon's Evidence exam is complete. I'm sure it'll inspire some interesting blogging.

Budget Cuts Hit Home

Looks like the budget crisis is having a pretty direct effect on our judiciary:

Federal court executives in South Florida and across the United States have begun to lay off and furlough workers as Congress looks for ways to prune a budget laden with national security expenses.

As many as 1,000 court jobs are on the line nationwide, according to a spokesman for the Administrative Office of the U.S. Courts in Washington, D.C.

I'm not particularly knowledgeable about the internal workings of the federal judiciary, but something tells me that significant staffing cuts will not be helpful considering the backlog on many dockets. In some state systems, the budget crisis is also manifesting itself through mandatory fees for public defenders. Well, maybe if we give some corporate welfare to energy companies, or create a huge new Medicare entitlement. Yeah that sounds good for the economy.

Law School Biases

In preparing for next Monday's Evidence exam, I've been reading An Introduction to the Law of Evidence, written by my professor, Graham Lilly. In the opening pages he makes an observation that I thought rather provocative, if only because it is so simple and yet easily over-looked:

Two concerns are central to all phases of litigation: first, a concern with establishing facts; and, second, a concern with the choice and application of legal rules. The formal study of law emphasizes the choice, construction, and impact of legal rules and principles. This academic preference has pedagogic advantages, but it obscures a basic reality: the outcome of most cases is determined by counsel's success in establishing facts favorable to his or her client. The governing rules of law are contested with much less frequency than is suggested by a study of the reported cases.

For those of planning a future as litigators (and even those not), this is something to keep in mind. I've seen other examples of distorted perspective resulting from only reading appellate case law. In all of the criminal procedure cases, the defendant has already been convicted, so one can easily forget the occasional person put on trial who was innocent and/or acquitted.

Victory for the NRA and the First Amendment

Howard Bashman and Eugene Volokh have both pointed out the excellent ruling handed down today by the 4th Circuit, striking down the Albemarle County (VA) school district dress code that banned the wearing of an NRA shirt to school. Longtime readers of my solo blog likely know that I am a member of both the NRA and the ACLU, so a case that finds those organizations on the same side is very exciting for me.

Even moreso, this took place in my backyard (I live in Albemarle County, just outside Charlottesville). The boy who tried to wear the NRA t-shirt practices his marksmanship at my gun club, and I believe his parents are fellow members. I've been following the case fairly closely, and am extremely pleased with the result.

Volokh has a photo of the t-shirt here, and the 4th Circuit decision can be found here.