two more...

1. We spent some time on statutory interrpetation in class, although we downplayed it for the final. If only our final was still ahead of us, I might use this "hypothetical:" does a the use of the word "force" in the September 2001 authorization of Use of Mulitary Force, authorizing "all necessary force," include wiretapping?


2. This semester we talked about the politics of courts now and again. Here is a post from our co-author, Princeton Emeriti Walter Murphy, on law and politics

Subject:
Re: FW: Walter Murphy on LAW AND POLITICS
From:
"Walter F. Murphy"
Date:Wed, 21 Dec 2005 13:32:53 -0700
To:xxxxxxx@yahoo.com
CC:Gillman Howard

Have been away and the debates have moved to other issues, but I would like to respond to Sean Wilson's comment re "politics" as overlapping/including religion, science, etc: The answer is a simple "of course." Aristotle saw politics as the "master science," concerned with helping citizens live noble lives. The most obvious overlap (competition?) is with religion. We can do a fairly good job of separating church and state but we can never separate law and politics, precisely why so many political theorists and public officials have tried to create a civil religion or make the head of state the head of church, as is still the case in the UK, Morocco, and, de facto, Iran.

As for science, many of our colleagues, Bob Gilpin most especially, have made science the focus of their scholarship. Issues such as cloning, stem cell research, ecology, public health and atomic energy are political, not merely "scientific issues," as is exploration of other planets.

We could say essentially the same thing about the other so-called fields that SW mentions.

We may think of ourselves as belonging to a water-tight discipline, but the distinctions among fields of the social sciences are largely imaginary and overlaps with the humanities (including theology, certainly moral theology) and the physical sciences is enormous. Indeed, I believe the distinctions among the humanities, social sciences, and physical sciences are, at best, artificial, a concession to our limited life times and intellectual capacities. The complexities of the world require specialization; but we'll never understand what we, as scholars, are doing if we adopt the mind set of the worker who said he was carving a stone rather than that of the man who said he was building a cathedral. Granted that most of us, certainly I, have to be content with an occasional well carved stone, but that stone is part of a much larger effort to understand and, we may hope, improve human life and its environments.

As for a distinction between law and politics, I repeat that law is a subset of politics in the Aristotelian (or Eastonian) sense. We, as professional scholars, should stop using a shallow, journalistic definition of politics. Even a decision by a lawmaker, judge, other official, or private citizen, to defer to other(s) represents, consciously or not, a judgment about the best way to organize and operate a society, to maximize our chances of living a good life. Why such a decision necessarily involves only "desire" and not reasoned judgment escapes me. That each of us may confuse the public good with private gain is obvious; that's why we have a duty to explain and criticize and perhaps take other action that our system opens up to us.

Peace,

WFM

cheers,

End of Semester Wrap Up

A few headlines and tidbits to post as the end of the semester wrap-up.

1. Is this why Harriet Mier was appointed?

Recall our discussion of Why Harriet? Was it merely cronyism? Or is it about the expansion of executive power that this administration has pushed since taking office?

From David Sanger's NY Times story about the NSA spying program comes this paragraph:

Bush said that every 45 days the program was reviewed, based on "a fresh intelligence assessment of terrorist threats to the continuity of our government and the threat of catastrophic damage to our homeland." That review involves the attorney general, Alberto Gonzales, and Bush's counsel, Harriet Miers, whom Bush unsuccessfully tried to nominate to the Supreme Court this year.

In the shadow of the administration's arguments in Padilla and Hamdan cases, maybe? Does Bush/Cheney care more about Roe or Executive Privilege?

2. The Dover, PA Intelligent Design case came down. Of interest to our studies was this portion of the opinion, submitted here without comment beyond noting that there are a lot of issue wrapped up here -- including the "dispute-centered" approach the judge seems to be taking:

Those who disagree with our holding will likely mark it as the product of an activist judge. If so, they will have erred as this is manifestly not an activist Court. Rather, this case came to us as the result of the activism of an ill-informed faction on a school board, aided by a national public interest law firm eager to find a constitutional test case on ID, who in combination drove the Board to adopt an imprudent and ultimately unconstitutional policy. The breathtaking inanity of the Board's decision is evident when considered against the factual backdrop which has now been fully revealed through this trial. The students, parents, and teachers of the Dover Area School District deserved better than to be dragged into this legal maelstrom, with its resulting utter waste of monetary and personal resources.

3. Access to Courts is a basic first step before we can address Rosenberg's argument whether Courts Matter.

From Roll Call, a subscription-service reporting on Capitol Hill:

Shortly before midnight on Sunday, the leaders agreed — after House and Senate negotiators had already signed the report and announced its details to the public — to insert controversial language that protects vaccine manufacturers from product liability claims in the event of a viral pandemic, such as one caused by avian flu.

Observers familiar with the procedural history of conference reports said that they were unaware of any precedent for inserting language after conferees had signed off on the report. A review of several Congressional Research Service guides to conference proceedings make no reference to any prior example.

Maybe its good policy (Perhaps spying on Americans is too)? Its not very democratic, however.

4. One student inquired about the Harvard Law Review Statistics used on the Final Exam. You can find them in PDF format on the Harvard Law Review Homepage.

the same issue contains a debate on proper interpretation: INTRODUCTION:
THE DEBATE OVER FOREIGN LAW IN ROPER V. SIMMONS 119 Harv. L. Rev. 103 (2005)

Finally, in addition to the Statistics, each November the Review publishes a "Foreward," an article by a prominent legal scholar. These often emerge as among the most important scholarly pieces of a generation. In 2005, the Foreward was written by Judge Richard Posner (MPEK reading 11.6. So what we have taken for granted all semester, is worthy of a prominent law review article.

FOREWORD: A POLITICAL COURT
by Judge Richard A. Posner [ Full Text ] VOL. 119 · November 2005 · NO. 1
119 Harv. L. Rev. 31 (2005)

Scholars discuss the work of the Supreme Court in two different ways. The less common is that of social science, with its emphasis on positive rather than normative analysis, its refusal to take at face value the “official” explanations for judicial phenomena proffered by insiders — in a word, its realism. To a social scientist, or to a law professor or other jurist who is imbued with the social-scientific approach, the Supreme Court is an object of observation rather than of veneration or condemnation. ...

The other way in which to discuss the Court’s work — and the way more familiar to lawyers, law professors, and judges — is to subject it to normative analysis conducted from within the professional culture. The analyst praises or condemns particular doctrines or decisions, or the reasons offered for them by the Court (textual, historical, pragmatic, and so forth) — more often condemns them, arguing that they are mistaken, unsound — more precisely, that they are mistakes of law, that the Court simply got the law wrong. This type of Supreme Court scholarship is a branch of rhetoric or advocacy — a continuation of brief writing and opinion writing by other means — but it is not wholly unrelated to the first type, the social-scientific study of constitutional law.

My aim in this Foreword is to be realistic, though without hewing closely to any particular social-scientific methodology; ...I shall argue that, viewed realistically, the Supreme Court, at least most of the time, when it is deciding constitutional cases is a political organ, and (confining myself to constitutional law) I shall develop some implications of this view, drawing in part on earlier Forewords, such as Hart’s.

Comments from Prior Post

Raised here, so you need not click through. Thanks to all commenters this semester.

Curtis N. said...

Here is a helpful little website for all of those people who hate registering their names and email addresses for online websites just to read the newspaper articles.

www.bugmenot.com

All you do is cut and copy the browser address of the news article which requires registration, and generally this database has a sign-on name and password already created.

I find it quite helpful.

-Curtis

11:13 AM
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john redden said...

Modern-Day F. Lee Bailey

Today's New York Times buried this fascinating description of former Attorney General Ramsey Clark - why he is who he is, and why he has chosen to represent Saddam Hussein por gratis.

I thought the article raised some interesting questions about the power of courts and the purpose of law.

5:05 PM
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Michael Cook said...

During one class period awhile ago, Justin asked about the fate of Jose Padilla; a Washington Post reported briefing on Padilla by Attorney General Gonzales can be found at:
...
i am unable/don't know how to post the link to the website...

but you can go to Washington Post.com and search for "Attorney General Gonzales Holds Briefing on the Indictment of Jose Padilla" on November 22, 2005.

enjoy

11:05 AM
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