August 20, 2006

Blogging lawprofs, go back to your law review articles.

Over at Balkinization, lawprof Larry Tribe writes a long-winded post defending Judge Anna Diggs Taylor's opinion in ACLU v. NSA. He thinks we bloggers have gone too far criticizing her, when there's so much reason to criticize the administration.
My point isn't that judges who play the role Judge Taylor did should never be held to account for the shoddy quality of their legal analysis; of course they should, especially in the context of sober second thoughts offered in law reviews and other scholarly venues.
Yeah, please tuck your criticisms away where no one will see them.
But It's [sic] those with constitutional blood on their hands who deserve to be chastized [sic] most insistently in the public press, and it seems to me something of an indulgence to spend so much time complaining in the media that the judge who called foul used some ill-chosen rhetoric, and that she stuttered and sputtered a bit more than necessary, when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.
Well, now I feel like criticizing Tribe's rhetoric. Could you put that in plain English? Are you saying the law professors who dared to engage with the opinion and scrutinize it on their blogs were mainly showing off and trying to further our careers? Are you saying that ordinary people who don't read law reviews and who are trying to understand current events shouldn't have the benefit of law professors helping them understand an important new case, that we're distracting them from their proper job of despising the President? You want people to concentrate on the judge's conclusion and not to question the judge's reasoning and analysis? To do that is to bow to authority. If that's what people ought to do, what happens to the foundation for criticizing the President? The President has concluded that he has the power to do what he's doing. Why shouldn't people accept that "important conclusion" and leave it for the experts to hash out the details in law review articles?

IN THE COMMENTS: Gahrie says: "Tribe's response comes from the same well of thought that Rather's response to the TANG memo forgeries did." Oh, yeah. Fake but accurate. She reached the conclusion we know is right, so...

MORE IN THE COMMENTS: David Walser writes:
I think there are two groups who are upset with the opinion: those for whom the opinion is further evidence of results oriented judging and those who are upset that the judge did not do a better job of hiding that this was the work of results oriented judging. Tribe is speaking to the second group. He'd like the public to quit looking at the man behind the curtain. That can't happen if the rest of the professorate keep calling attention to The Great Judicial Oz' failure to explain why the Administration is wrong. If you guys keep blogging, some might come to believe there is such a thing as judicial activism. That's a greater risk to all Tribe holds dear than the matters that were at issue in this case.

UPDATE: This post is the main subject of the new podcast.

79 comments:

Headless Blogger said...

Ann,

Read the decision again. You must have missed the part that undisputedly states that the 1st Amendment only applies to the mainstream press, Islamic terrosists and critics of the Bush administration. Blogging law profs are not covered.

Jim

Ann Althouse said...

And then there's also the way the press used to consult the conlawprofs at Harvard and Yale, and maybe Chicago and Stanford and confine their quotes to the pronouncements of these scholars. (I wonder which lawprofs advised the NYT that Judge Taylor had "eviscerated" the administration's arguments. It'd be funny if it was Tribe.) Now these upstarts can blog from any school, and it's this crazy -- I don't know what to call it -- almost a sort of a marketplace of ideas!

vnjagvet said...

Tribe has done his share of pontificating as a talking head and in the popular press. Why is blogging any different?

I think Larry's a bit jealous that blogging has opened the doors for what he considers "lesser lights".

Clue, Larry. The Althouse's and Volokhs of this world are every bit your equal as intellectuals, as analysts and as writers.

Paul Zrimsek said...

Ann! You, as a Constitutional Law prof, have a duty to stick to Project Runway and not breathe a word about the legal issues of the day.

Laurence Tribe: the anti-Quxxo!

Pat Patterson said...

I think we need a caste system in the US. That way when the truly enlightened speak, we'll know them by their noble brows and diction, the rest of us can perform prokynesis. Luckily for me, coming from a long line of voluntary and involuntary soldiers, my family will get to carry the guns. But I'm sure we'll always show proper deferenced to those of the exalted LSAT scores.

C. Schweitzer said...

One of the frightening things about this quote from Tribe is that he is often touted as someone that might be on track for a judge-ship if a liberal wins the presidency.

With the kind of illogic and unabashed elitism he displays in these comments, I shudder at what kind of jurist he'd make.

Old Dad said...

Ann,

I think Prof. Tribe's defense would also earn an Althouse F. I'm not competent to evaluate Judge Digg's opinion, but Tribe's silly response is strikingly stupid. We should not criticize Judge Diggs' breezily written and poorly reasoned (Tribe's adjectives) opinion just because it is not carefully founded on the law, for after all, she's right. Who cares that she did not prove it? Moreover, it's the role of the courts to criticize the Administration--those with "Constitutional blood" on their hands.

So much for sober legal discourse. In fact, I'm guessing that Larry might have been hammered when he wrote this tripe.

C. Schweitzer said...

One of the most admirable aspects of the way the American judicial system was set up is the way everything is done in English--so that any literate person can see what the judicial branch is up to.

So many countries have judicial systems in place that deliberately lock out non-legal scholars from the process of even understanding what's happening in their courts.

The French court system used (I don't know if it still does) "administrative law French," which is an arcane medieval version French that ordinary citizens don't know at all. And Britain used Latin until the 19th century.

Our courts may use convoluted and dense prose, but it's still English. Our founders didn't want a small cadre of scholars, lawyers, and politicians like Tribe debating internally and insulated from the masses.

The very fact that I can read the decision myself and have a discussion with a law professor who isn't condescendingly suggesting that such debates are above and beyond me is highest compliment we can pay to our judicial system.

Ann Althouse said...

And some judges -- notably Earl Warren in Brown v. Board of Education -- deliberately try to write opinions that speak comprehensibly to ordinary, intelligent citizens.

And I don't think Tribe was "hammered" when he wrote that, though I do think he was trying to write in a high-flown, unbloggy way. I was going to make fun of his writing, because it's so full of clich├ęs, sometimes more than one to a sentence, in a humorous fashion. You might start out not seeing the forest for the trees, and by the end of the sentence, you were worrying about whether an argument is "water-tight" and how you are "steering the legal boat." Are we on land or sea? Or you might be "grasp[ing] at legal straws in order to mask a naked assertion." Are we making masks out of straws now?

And then there are sentences like this:

"Although my good friend Cass Sunstein, whom I admire in more ways than I can count, seems to remain of the view that the administration's invocation of the AUMF was at least a plausible way around the prohibitive effect of the FISA prior to the rejection of that reading in Hamdan, I was among those -- including some of those whom you quote as critical of the Taylor opinion -- who had no doubt whatsoever, long before Hamdan was handed down a couple of months ago, that the administration was reading the AUMF for vastly more than it could conceivably have been worth and, in the bargain, was twisting Justice O'Connor's words and the Court's conclusions from Hamdi v. Rumsfeld in treating that earlier decision's analysis of the AUMF as support for the far-reaching use the administration sought to make of it."

It's like one of the humorous counter-examples from "Politics and the English Language."

This sort of writing is intended to fend off non-experts and give the appearance of erudition. This is what blogs are the antidote to (even though he did write that on a blog).

Gahrie said...

Tribe's response comes from the same well of thought that Rather's response to the TANG memo forgeries did.

The hubris of these liberal pseudo-intellectuals is almost awe inspiring.

PatCA said...

Hubris, moralism, jejune idealism...what is it with the left?

I have acquaintances, even of a certain age, who are positively sick that Gunther Grass revealed himself as a former Nazi. Now they are defending an indefensible opinion, all in the name of BDS, as if the world would suddenly be utopia if only he were gone. Don't they understand human nature at all?

Too Many Jims said...

Ann,

Out of curiousity, putting aside the opinion that the Judge wrote (which I believe Tribe is quite critical of), what do you think will happen to the "decision" of the case? My reading of Tribe is that he thinks that there is a good possibility (perhaps even a probablity) that the "decision" will be upheld even though the opinion sucked.

Ann Althouse said...

Jim: There are good arguments on both sides. I don't know how it will come out. Conceivably, Congress will change the statutory law and moot the case except the part about the the First and Fourth Amendment. Those parts will probably be reversed on appeal, however. If the statutory law isn't changed there's a good chance a court will say that the President has to follow the FISA warrant procedure. But there's also a very good chance the appellate court will say the plaintiffs don't have standing or that the whole case is barred by the state secrets doctrine.

Seven Machos said...

Speaking of Cass Sunstein, he saw this whole thing coming. Wrote a book about it (Republic.com) arguing that the Internet should basically be restricted because "the Internet causes us to become more extremist and close-minded" and not to have to listen to people like Cass Sunstein (and Tribe).

Sucks to be you, Larry. Sucks to have other opinions influencing the debate. I'll always have a soft spot in my heart for Sunstein because at least he writes clearly. Unlike you.

Dave said...

Uhh, isn't Tribe the God of, well, your tribe?

How dare you criticize him!

David Walser said...

Ann,

I think there are two groups who are upset with the opinion: those for whom the opinion is further evidence of results oriented judging and those who are upset that the judge did not do a better job of hiding that this was the work of results oriented judging. Tribe is speaking to the second group. He'd like the public to quit looking at the man behind the curtain. That can't happen if the rest of the professorate keep calling attention to The Great Judicial Oz' failure to explain why the Administration is wrong. If you guys keep blogging, some might come to believe there is such a thing as judicial activism. That's a greater risk to all Tribe holds dear than the matters that were at issue in this case.

Paul Zrimsek said...

How do you say "fake but accurate" in Latin? It ought to become a standard legal term of art.

Simon Kenton said...

fictus sed verus.

The nice thing about 'fictus' is that it carries the connotation of a made object, as for instance a poem.

For people who disdain any absolute source for epistemology, leftists have a heartening reliance on 'what we all know is right.'

As a former law enforcement officer (a Ranger), I'm wondering when the right of the press and the judicial activists to craft evidence and argument in support of what they know to be right will be officially extended to regular officers. There were many I wished to cite for the offence of "being a dolt in a unit of the National Park System" or "gross, palpable, egregious stupidity in an area administered by the Secretary of the Interior," if only such an offence could have been found in the CFR. If only field-level law enforcement types were allowed the ability to gin up evidence, think what a right-thinking citizenry we could craft.

John(classic) said...

http://math.boisestate.edu/gas/iolanthe/web_op/iol06.html

reallybigmills said...

A challenge to those who think Judge Diggs' order fails to accomplish what should have been expected from a federal judge in her shoes.

Write one yourself.

If you're in the legal profession, write the order you think should have been written, that fully explores every issue you think should have been adequately addressed.

This is not someone snidely suggesting that 'don't criticize until you've done it first.'

Rather, this is someone reacting to the vehemence with which all of you - you too, Professor - so quickly rip her to shreds, suggesting her order is worthy of an F.

Let's see your version of an "A." Take Judge Diggs' position or take the other. Read the briefs. They're publicly available, after all. Then write a successful order, one which accomplishes all you think Judge Diggs should have accomplished.

I look forward to the finished product.

Badger Down Under said...

A few years ago Gary King and Lee Epstein (both political scientists) wrote an article in the University of Chicago Law Review arguing that legal scholarship did terrible empirical social science. They produced data showing that most of the empirical work that made it into the reviews was awful -- no meaningful statistical inferences, little understanding of samples and populations, and just plain bad analysis.

The response was predictable, but what struck me was that one counter essay prefaced its remarks by saying what great guys King and Epstein were, as if this had anything at all to do with the core of their argument.

Tribe's rhetorical homage to Cass Sunstein reminded me of this; as if it makes any substantive difference to anything that Tribe considers Cass Sunstein "a good friend," whom he admires in more ways than he can count?

My view: be skeptical of anyone who has "no doubts" about the legality or illegality of the NSA program.

Ann Althouse said...

"I look forward to the finished product."

Give me the briefs and the oral arguments and the law clerks and the other institutional support of a federal judge and pay me for the the time it would take to do the the work properly, at the rate paid federal judges. At least two months, probably substantially more. This isn't a little game. It's very serious professional work! You really don't seem to get it.

Ann Althouse said...

Badger: It reminded me of the way Senators talk to each other. Some of it is a genuine effort at maintaining civil relations. But I resent having my time wasted reading it, and it rubs me the wrong way because it feels like showing off -- claiming friendship with big shots -- which is especially irksome in a post accusing the ordinary, hardworking bloggers of showing off.

XWL said...

Given that Project Runway was invoked earlier, I can't help but almost confuse AUMF with auf.

That's why you shouldn't get peanut butter in my chocolate.

(or is that chocolate in my peanut butter?)

(nevermind, they actually do kind of taste pretty good together)

I guess, Prof. Tribe isn't a fan of that candy, cause essentially that's his argument, 'you blogging professors got pop culture in my academic seriousness.'

(and therefore I can dismiss anything you say about everything, when it's convenient for me to do so)

sparky said...

Looks like all the other moonbats are off enjoying the day so I’ll put my oar in.

I think Ms. Althouse’s rhetoric is better than Tribe’s. Come to think of it, his sentence structure is nothing to write home about. I also think his decision to post his email was not a good idea. But does that mean that he’s wrong about everything or just about those things of which he's ignorant?

What exactly did he say? That criticism of the opinion on the basis of its rhetoric was a distraction from the conclusion. What is wrong with that? The politics of distraction are well-honed by now, and certainly some of the criticism was ad hominem rather than substantive. (I agree with the characterization that the later parts of the opinion read as if someone ran out of time on an exam.)

Where did he say it? In an email that was a comment on the NYT piece. I think he made an error in conflating ideologically based criticism with the legal blogger critique. He also made a mistake in not thinking about how words in an email might look when posted on a website. And he made what looks like a gratuitous swipe at bloggers generally. I don’t feel any need to defend him on those points. After that I part ways with the criticism. I think in the quote he was complaining about forms of criticism as a distraction from the merits of the issue. Discussing the merits of the issue is not deference to authority; it’s the opposite. But by writing the way he did he created another distraction. Oops.

As far as the writing goes, I’m not sure I follow exactly how it’s exclusionary. Some of it is dense and poorly-written, like the Sunstein sentence. But much of it is pretty straightforward.

Also, I think it is important to take issue with one aspect of the criticism here, or at least what seems to be a critique. “Right for the wrong reasons” is not an uncommon phrase in the legal system. That’s one reason we have appellate courts. In this regard, I think “fake but accurate” is itself not an accurate representation of what Tribe did say: . . .“I certainly agree with the many who predict that, while her reasoning is bound not to be embraced, her bottom line is very likely to survive appellate review.”

Old Dad said...

Sparky,

You can do better than that. A serious moonbat would never try to defend a "right for the wrong reasons" argument.

On the other hand, only a serious moonbat would.

My apologies.

John in Nashville said...

If not for result-oriented jurisprudence, would there even be a George W. Bush administration?

If not for result-oriented jurisprudence, in 2000 the Florida electors would have been selected according to state law, and the Electoral College or, failing that, the House of Representatives would have decided the presidential election.

Defenders of the current Bush administration decrying result-oriented jurisprudence rings as hollow as hearing Clarence Uncle Thomas decrying affirmative action.

P. Froward said...

When the rubber hits the road, the straws they're grasping at are nothing but a brazen fig leaf. And I for one think Tribe hit that fig leaf right out of the park.

P. Froward said...

John, that white sheet suits your coloration. Apt choice.

JorgXMcKie said...

I think Tribe is still honked off because he missed his chance to join SCOTUS when Marshall refused to resign while Carter was President. Carter would probably have nominated Tribe and he would have been confirmed and be joining decisions to this day. Too bad Marshall just couldn't bring himself to let Carter replace him.

Too bad for Lefties, anyway.

Gahrie said...

John in Nashville:

If not for result-oriented jurisprudence, in 2000 the Florida electors would have been selected according to state law, ...


You're right, but for exactly the wrong reason. If Florida State law had been followed, and the Democratically-dominated Florida State Supreme Court not indulged in "result-oriented jurisprudence" there would have been no case to go to the U.S. Supreme Court.

Ed said...

If the Administration chooses not to appeal the Diggs decision, can they use that same decision to bolster the case that the New York Times committed treason? (ie aid and comfort to the enemy during wartime)

JorgXMcKie said...

Too bad john in nashville didn't notice the 'result oriented' rulings of the FLSCOTUS, in which they not only distorted the laws in Florida, they decided they didn't matter anyway. Perhaps if they had been less anxious to recount in a way they thought favored Gore they might have gotten it right and Gore would have had a better chance and a better case.

Oh, well, catch your ride on the Great Mandala. What goes around tends to come around.

tcd said...

I guess Justice Thomas made that most egregious of errors for a minority, he wandered off the liberal plantation. Is that what you meant, John?

rhhardin said...

when the principal effects might well be to underscore one's own professional credentials and one's cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab.

James Thurber, in ``Ladies' and Gentlemen's Guide to Modern English Usage,'' identifies the problem :

The chief objection to a consistent, or ``cross-country'' use of ``one'' is that it tends to make a sentence sound like a trombone solo...

Even just twice is too many time

Steve said...

reallybigmills said...

A challenge to those who think Judge Diggs' order fails to accomplish what should have been expected from a federal judge in her shoes.

Write one yourself.

If you're in the legal profession, write the order you think should have been written, that fully explores every issue you think should have been adequately addressed.

This is not someone snidely suggesting that 'don't criticize until you've done it first.'

Rather, this is someone reacting to the vehemence with which all of you - you too, Professor - so quickly rip her to shreds, suggesting her order is worthy of an F.

Let's see your version of an "A." Take Judge Diggs' position or take the other. Read the briefs. They're publicly available, after all. Then write a successful order, one which accomplishes all you think Judge Diggs should have accomplished.

I look forward to the finished product.

How about: "Plaintiffs have failed to demonstrate that they have standing."

Peter said...

"Well, now I feel like criticizing Tribe's rhetoric." Any time you're ready, please do so. Pretending (at least I hope you were pretending) not to understand what he meant and posing facetious rhetorical questions ain't gonna cut it, except for the sort of commenter who thinks using the word "moonbat" and "Leftie" has any place in a real argument. Also, do you have any idea how ridiculous it is for a lawprof at U.W. to call out a lawprof at Harvard for elitism? Apparently you don't. Let me spell it out for you: it's totally ridiculous. Sheesh.

noah said...

Testing. Just wanted to see if I good manage a hopefully non-rejected comment that Ann is beautiful.

Grumpy Old Man said...

"My learned colleague" means "that idiot over there."

"With all due respect, Your Honor," means "Judge, you're an asshole."

Michael McCanles said...

Re: Diggs' language usage

The judge is indisputably semi-literate, i.e., it can be argued thus and rightly so. I don't say that she is "undisputedly" (her word) semi-literate, because there is no such word. What she may have intended is something like "indisputedly," which doesn't exist either. What she may have meant, on the other hand, is that the points she holds to be "undisputed" are in fact "not disputed," which (in another direction) isn't true either, since the DOJ disputes them.

Given the weight which this nonce adverb carries in her argument (novice fiction writers are often admonished to write all the adverbs in an early draft, then delete them) I would, though no lawyer, be inclined to argue that her argument falls down on internal grounds. That is, if she wants to ground the force of her argument on the palpably untrue contention that is "undisputed" when it demonstrably is not, is this not tantamount to making a false claim, and as such calls for a dismissal of her opinion on those grounds alone? If a judge writes an opinion that depends for its credibility on the notion that the world is flat, cannot one argue that all other pros-and-cons re: the argument yield to the conclusion that the opinion has no real-world referent?

noah said...

Sock puppety addict Greenwald was saying essentially the same thing at VC a couple of days ago.

vnjagvet said...

Steve E:

Yours is probably better than the Judge did, or RBM could do.

BTW, I didn't see him taking a stab anywhere.

Of course, Judge Biggs Taylor presumably had a law clerk.

antimedia said...

peter writes, "do you have any idea how ridiculous it is for a lawprof at U.W. to call out a lawprof at Harvard for elitism?"

To which I reply - uh, say what? It seems your comment smacks of elitism.

Here's my non-lawyerly opinion, having read the judge's brief.

She worked hard to establish the fact that the government made a prima facie case for application of the state secrets doctrine and then said, "But I'm going to ignore that and grant the injunction anyway."

Although I think the best argument was made by Steve Eschenbacher - "Plaintiffs have failed to demonstrate that they have standing."

The plaintiffs' case boils down to this - they admit talking to known terrorists. They also admit that, since the NY Times exposed the program, their contacts will no longer communicate with them via phone or email. (Thus they claim to show damage.)

Now they want to establish a constitutional right to converse with the enemy during a time of war. And the judge thinks they have a case.

Z as in Jersey said...

Steve E --

"Plaintiffs have failed to demonstrate that they have standing."

I'm a corporate lawyer, not a litigator, but didn't you forget to say "Case Dismissed"?

Other than that, I think your draft opinion is perfect.

InformaticsMD said...

Larry Tribe is guilty of being an elitist jackass.

Thanks to blogs, people such as myself (a mere physician-computer scientist) can see the soft belly of leftist-activist law exposed for what it is: intellectual garbage.

Powerline blog has been particularly excellent in this regard with its analyses and links.

One wonders, in fact, if the plaintiffs in the case against NSA surveillance (who the judge has admitted have had contacts with 'suspected' terrorists) aren't trying to get the surveillance declared illegal because they have something to hide - and think the NSA knows about it.

DRJ said...

It's posts like this one that make me love blogs and keep me coming back for more. I learn something. I think. It's the ultimate public service announcement.

Al Lemire said...

Ann Althouse’s comments and those of most of the other people who have posted are marvelous contributions to the “marketplace of ideas” that one writer mentioned. One wishes one could put in the “Where’s the beef” posting that Paul Mirengoff placed on Powerlineblog.com. “It is part of my job as a litigator (and has been for more than 30 years) to read and understand judicial opinions. Off hand, I cannot recall reading an opinion as conclusory and content free as the key portions of this opinion,” he wrote. Conclusory is a good word, which good lawyers and judges must know, a conclusion without supporting evidence.

My local newspaper highlighted the “There are no hereditary kings in America and no powers not created by the Constitution” words. The hereditary kings reference suited the political nature and weakness of the ruling. If George W. Bush were a hereditary king, as certain nations in Europe still have hereditary kings, or queens, his powers would be severely circumscribed. Perhaps Judge Taylor ought to wish he were a hereditary king, but he is not. He has the constitutional power and responsibility to protect Americans against people who wish to do Americans harm. That ought to be obvious, but so much that is obvious and true seems to be unknown to many hiding from reality.

How does someone who reasons poorly, as Judge Taylor did, get to be a judge? Who appointed her? Why? Every day, I should thank those who prevented Harriet Miers, a terrible writer, from getting a foolish nomination to the High Court. George W. Bush, not known for rhetorical strength, could not spot that weakness in Ms. Miers’s writing; readers of her Dallas speech could. Not that this writer opposes women as judges. Ann Althouse would be fine. So would hundreds of competent judges and lawyers.

Gahrie said...

Just to answer the question..Judge Diggs was appointed by Pres. Carter in November of 1979.

Mike G in Corvallis said...

Ring Lardner has already written the definitive summary of Tribe's little essay:

"Shut up," he explained.

Old Patriot said...

We have judges like this in our courts because we haven't removed bad judges who fail to serve during "good behavior". We believe that only impeachment can remove judges. We have far too many judges who are serving only because they were friends of someone twenty years ago, and have little talent or ability to perform the duties they've been given.

Fenrisulven said...

Clue, Larry. The Althouse's and Volokhs of this world are every bit your equal as intellectuals, as analysts and as writers.

You're being too kind. If that is the best defense Tribe can muster, then such comparisons are insulting.

Fenrisulven said...

Conclusory is a good word, which good lawyers and judges must know, a conclusion without supporting evidence.

Isn't that the same as Argument by Assertion? Don't they ward against that in the first year of Law School? How can Tribe defend Diggs for using such fallacious reasoning? Have they both gone senile?

Zeb Quinn said...

"Although my good friend Cass Sunstein, whom I admire in more ways than I can count, seems to remain of the view that the administration's invocation of the AUMF was at least a plausible way around the prohibitive effect of the FISA prior to the rejection of that reading in Hamdan, I was among those -- including some of those whom you quote as critical of the Taylor opinion -- who had no doubt whatsoever, long before Hamdan was handed down a couple of months ago, that the administration was reading the AUMF for vastly more than it could conceivably have been worth and, in the bargain, was twisting Justice O'Connor's words and the Court's conclusions from Hamdi v. Rumsfeld in treating that earlier decision's analysis of the AUMF as support for the far-reaching use the administration sought to make of it."

That may pass for erudition in somebody's parallel universe, but in every writing class I ever took, 1st year Legal Research & Writing in particular, it would've been handed back to the fledgling scrivener in a most humiliating way.

John Thacker said...

It really reads like Prof. Tribe believes that criticism of process should be kept to a minimum because doing it in front of the public might help the terrorists Administration. The parallels to the very things he criticizes in the Administration's behavior-- keeping disputes about process internal rather than on the front pages where it might confuse the public or help the enemies win, subordinating process concerns to the larger goal, thinking that nothing is more important than going after "those with [Constitutional] blood on their hands," and being willing to excuse errors of process, saying that criticizing excessive rhetoric helps the Administration win and so on-- are striking. Merely refocus the same sort of outcome-based logic against the Administration's actions rather than the terrorists.

Steven said...

If not for result-oriented jurisprudence, would there even be a George W. Bush administration?

Well, yes.

**(I'm going to wander off-topic here, so skip to the next message if you'd like)**

Let's set aside the Florida Supreme Court, which was mentioned above.

First, it's been demonstated that had the votes been counted under the Gore-proposed standard -- that is, had every justice and judge ruled in Gore's favor -- Bush would have won the count.

Second, had the count come out somehow in Gore's favor, it would have come past the Federal elector-naming deadline in any case. In that situation, Congress, responsible for counting the votes, would have likely have split, House vs. Senate, over which set of electoral votes to accept from Florida (especially given the Republican state legislature was passing a pre-deadline bill to submit Republican electors).

In that case, no one would have had a majority of the Electoral votes. With no electoral majority, the Presidency would have been decided in the Republican-controlled House, while Gore would as VP have broken the tie in the Senate to make Lieberman VP-Elect.

So, at absolute most, "results-oriented jurisprudence" made Cheney VP instead of Lieberman, assuming Lieberman took the VP slot under Bush instead of refusing to keep his Senate seat. And if he'd taken the VP slot, his Senate seat would have been filled by a Republican by the Republican governor of Connecticut in office at the time, which would ahve given the Republicans control of the Senate (51-49) just like the 50-plus-Cheney did.

The interesting stuff then comes in the 2004 election, where the nation's most prominent Democrat (Vice-President Lieberman) is not merely a defender of the Iraq War, but actually had a hand in planning it (as a member of the National Security Council) . . . that's where the might-have-beens start.

If not for the Bush v. Gore ruling, we might currently have Lieberman nearing the midterm elections of his first Presidential term, instead of running outside his party in Connecticut. Or we might be in the second term of Bush-Lieberman, having been elected on a unity ticket in 2004. Or . . . well. Hard to see, the future is.

Terry Gain said...

Given the fact that the so-called abuse of power is being exercised for the purpose of better defending the country from terrorist attacks Tribe's description of the administraton's use of warrantless surveillance as a "shamelessly unlawful power grab" reveals him as a shameless partisan..

As to whether Taylor's decision is correct I can't comment without reading the five appellate decisions she seems to have ignored.

This case should spark debate on the fundamental question: On the issue of whether the communucations between a foreign based terrorist and someone in America should be monitored who do you want making the decision- liberal judges or the professionals in the business of fighting terrorism?

BigDirigible said...

Tribe is a terminal leftoid, but he's not brain damaged. Or so I thought not long ago.

The reasoning in Tribe's piece is so sophmoric, and the writing so labored and lumbering, that I wonder if perhaps it's a fake - a useless piece of trash to which some scallywag has appended Tribe's name.

It wouldn't be the first time that sort of shenanigans has happened on the 'Net.

sparky said...

Old Dad:

Right for the wrong reasons is a pretty common legal usage. I didn't defend it, just observe that a legal notion like that one, wrenched out of context, can be misused.

I wasn't defending the decision. I'm not sure it is defensible. The bulk of what I wrote was an effort to distinguish between Tribe's misbegotten effort to talk about something he doesn't seem to know anything about and his other remarks. Most of us don't express ourselves that felicitously all the time. I think our over critical culture has produced an unfortunate variety of PC talk: if you say something poorly, it allows your opponent to disregard your point. I would think people who support the current president might get behind the notion that we should stop doing this.

Ruth Anne Adams said...

Steven said: "Hard to see, the future is."

Talk like Yoda you do.

btw: I enjoyed your "off-topic" counting flight of fancy.

SippicanCottage said...
This comment has been removed by the author.
37383938393839383938383 said...

Laurence Tribe is a hypocrite. He criticizes law professors who comment on topical issues outside of law reviews, but he himself wrote (read: plagiarized) God Save This Honorable Court, advises Democrats how to Bork judicial nominees, appears on Charlie Rose to debate controversial topics, and fails to criticize Erwin Chemerinsky's championing of Judge Taylor's poorly reasoned opinion in Slate magazine, which, last I checked, is not a scholarly publication. In this letter to Adam Liptak, Tribe sounds like he is writing for the benefit of the Democratic base, i.e., it reads like one of those op-eds written by Richard Holbrooke that is clearly just an application essay for the job he wants if Democrats gain power in 2008. Clearly Richard Holbrooke writes op-eds to appease the Democratic base because he wants to be Secretary of State. Too, clearly Laurence Tribe wrote this letter because he wants to be appointed to the Supreme Court if Democrats are in power when there is another vacancy. It's probably also why he stopped penning his treatise -- so he can honestly say he hasn't really delved into certain recent cases and limit the answering of questions about practical applications of his judicial philosophy at a future hearing before the Senate Judiciary Committee. Which would be hypocritical.

Anthony said...

I have it all figured.

It's yet another Rovian plot! Vis, the discussion last week regarding conspiracy theories. Put out a specious, ill-conceived proponent that is so out of left field that no one will believe them, and it tarnishes the entire field, in this case legal scholars opposed to the NSA scheme. Now there's no way any other court will follow suit.

Those crafty Necons.

ex-democrat said...

an stute commenter above said "The plaintiffs' case boils down to this - they admit talking to known terrorists. They also admit that, since the NY Times exposed the program, their contacts will no longer communicate with them via phone or email. (Thus they claim to show damage.)"
In that case, isn't the NYT a necessary party - and, indeed, a third party defendant?

JorgXMcKie said...

Obviously if Tribe has read John Stuart Mill he has forgotten or ignored Mill's take on free speech.

Perhaps Tribe would be better off to write an article explaining why the order is so excellent.

But, then, I would guess he is at least smart enough not to do that.

Richard Dolan said...

Tribe's rhetoric is certainly elitist, but in a sense that is oddly reminiscent of old religious conflicts. According to Tribe, lawprofs who write about issues such as the NSA intercept program should keep their eye on the larger objective: at all costs avoid "distracting the general public from the far more important conclusion that the nation's chief executive has been guilty of a shamelessly unlawful power grab." If that requires that lawprofs pretend that a shoddy opinion is really "a careful, thoroughly grounded opinion," in the words of the NYT editorial, that little deception is justified by the demands of the larger truth.

To the extent that the Legal Academy -- Tribe necessarily has to cast it as some kind of unitary body, with a clear and nearly unanimous opinion about the merits of the underlying legal dispute-- gets involved in public debate, Tribe's view of its primary role and highest duty is to transmit the proper interpretation of Holy Writ to the untutored. In this case, accordingly to him, that means keeping with the party line (not much doubt which "party" he has in mind, both ideologically and politically) about the Constitutional and statutory limitations on the powers of the Bush Administration, so that "the public" will draw the correct political conclusions. And then, presumably, the public will act accordingly.

That's a very old idea about the role of the priesthood, mediating between God and man by offering the uneducated public the Truth without getting involved in detailed explanations or putting on a public display of internal debates. After all, that would just makes the "public" skeptical that the priesthood has any special hold on the Truth.

That idea died with the Reformation. It's odd to see it being resurrected by Tribe in this context. Tribe's ahistorical wish for the Legal Academy to function like the 15th century Curia is explainable, I think, only in terms of the remarkable degree to which contemporary American university faculties are almost wholly lacking in intellectual diversity on any significant political issue of the day.

ex-democrat said...

the other reason Tribe wants to keep the details of the sausage-making a secret, of course, is so that when his lot are doing the "power grabbing" his inevitable about-face will be less detectable.

kcom said...
This comment has been removed by a blog administrator.
kcom said...

"Why shouldn't people accept that 'important conclusion' and leave it for the experts to hash out the details in law review articles?"

If it was good enough for Dred Scott it should be good enough here. Getting the "right" result is what's important, not the legal reasoning behind it.

Seven Machos said...

Why have legal reasoning at all? Why bother with long-winded opinions?

Mark T said...

Boy, talk about elitism. You conservatives have a monoploy on sensible thought and erudite prose.

I can't wait until a liberal President violates your 2nd amendment right to bear arms by invoking implied war powers not supported in text of the constitution to limit gun ownership, in order to protect us from theoretical threats posed by "the terrorists". I'm sure the conservative movement will be very understanding and supportive.

JDM said...

Seriously, after writing that, how could Prof Tribe hold out any hope of an appointment to the Supreme Court? Putting naked politics above the law is surely the worst sin for anyone who wants to be a judge.

David said...

"and act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore"...a very strange analogy. If the boat is leaking heavily and about to sink, getting it patched up is more important than heading in a specific direction.

More seriously: "the right direction" obviously implies some means of choosing what the right direction *is*. If this choice is not a matter of intelligible legal arguments, then it must be simply a matter of the judge's subjective opinion.

Stephen said...

"Tribe's rhetoric is certainly elitist, but in a sense that is oddly reminiscent of old religious conflicts."

Actually I was just about to suggest to Ann that she start posting in Latin. That way we can keep the commoners out of all this.

Stephen said...

"Boy, talk about elitism."

Bloggers are elitism personified.

We need some more Harvard Law profs to set them straight.

"theoretical threats posed by 'the terrorists'"

and for that matter, so do I -

Which of these threats are theoritical and which aren't?

knoxgirl said...

You conservatives have a monoploy on sensible thought and erudite prose.

In fact, no one has said that but you. Look, it's no one's fault but the Judge herself that her writing and reasoning sucks. Just be honest: like Tribe, it's not good enough that the opinion goes your way; you will brook no dissent.

****

Whovever pointed out the Rathergate similarities in all this has it spot on... what we have here is a bunch of people used to owning the microphone and getting away with producing sub-par (and that's a generous term!) product. No more!

Get used to it, suckas

Bruce Hayden said...

I do agree that Tribe does appears from this to be into results oriented jurisprudence. How you get there isn't important. He admits that the 1st and 4th Amdt. conclusions were highly suspect, but that was ok, apparently, because if she had truly addressed FISA, she would have come to the same conclusion (Hey Larry - how do you get standing then?)

His problem is that he is now a dinosaur, and is facing extinction. He is no longer the "go to" guy for serious legal analysis of constitutional and related legal issues. The Volokhs, Balkins, Althouses, et al. have taken that over. He didn't bother to make any real substantive legal arguments on either side. Period.

Instead, we are supposed to trust him, someone so actively partisan that they would take high profile polical sides on such issues as Bush v. Gore.

Sorry Larry. I am going to stick with Eugene Volokh, Jack Balkin, and Ann Althouse. They are the wave of the future, and you are a rapidly receeding wave of the past.

Bruce Hayden said...

I think another problem that some have suggested here is that the public, and that here to some extent includes many of us lawyers, don't automatically put someone like Tribe up on a pedestal just because he teaches at Harvard. Law profs are much more likely to do so - I think because it is a somewhat hierarchical society. We are sitting on the outside, and expected to give Mr. Tribe the same type of deferrence as his "peers" do.

But how can we? He defended the autrocious writing of Judge Taylor almost solely on the grounds that she got the write answer. He mentions her "unusually casual and surprisingly breezy way of dispatching the Bush administration's legal defense of its NSA warrantless surveillance program", but doesn't mention that he, too, along with Prof. Althouse, would probably have failed Judge Taylor if she had submitted that opinion in one of his classes.

Justin said...

That chirping you hear? Ann failing to actually take Tribe's invitation and consider Bush's actions.

::chirp:: ::chirp::

I mean, why actually address, as a (supposedly) liberterian constitutional rights professor, the serious constitutional issues of a government who argues that it is unrestrained by the Fourth Amendment and the restrictions of Congress....

...when you can instead focus on another professor's writing style!!!

So much fun to be irrelevant in the hopes that nobody will make the relevant inquiry.

Ann Althouse said...

I'll tell you why, Justin. Because I think the legal issues are complex and profound and that finding the answers requires a legal process of analysis that is not result-oriented. I would like to engage with a legal opinion by a judge that presents the complex questions in a structured form, and the opinion failed to prvide that object of study, because the signs of untrustworthiness were all over it. And I have a scholarly interest in the subject of the judicial method and judicial review quite apart from the underlying substantive issues in the case. It's not all about outcomes. If it is, it would be all too easy to throw my lot in with the President.