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.