Legal Commentary

Recovery Choices (Or Not)

Posted on July 16, 2009
Hot Air links to a new Diageo/Hotline poll finding ?Decreased Confidence in Stimulus Spending and Concerns Over Deficit; Double-Digit Increase in Percentage of Voters Saying Country Is On the ?Wrong Track.?? Read the whole report of the poll results; they?re fascinating...

Does Sotomayor Believe What She Said? What She Says? Either?

Posted on July 16, 2009
In his questioning today Sen. Cornyn asked Judge Sotomayor about a number of contradictions between what she has said in various speeches over the years and her answers to questions before the Judiciary Committee. (HatTip to Jonathan Adler) Here?s my favorite question and response, dealing with with Sotomayor?s initial disagreement but now claimed agreement with the well-known observation of Justice O?Connor that ?a wise old man and wise old woman will reach the same conclusion in deciding cases...

If More People Wrote Letters Like This...

Posted on July 15, 2009
... there would be less need for letters like this. The indefatigable Linda Seebach, formerly of the former Rocky Mountain News, recently sent the following letter to the head of the communications department at DePaul University: I listen to WFMT (streaming on the Web), and recently DePaul has been running ads focusing on a professor in the Chemistry Department named Quinnetta Shelby...

Rampant Dishonesty

Posted on July 15, 2009
The Sotomayor hearings are proving to be far more interesting than I?d expected. I have assumed that Sotomayor is smart, a quick study, and that she would be well prepped to deflect and defuse the many embarrassing questions provided by her long record of highly controversial assertions...

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UPDATE!

Posted on July 15, 2009
Rampant Dishonesty has been UPDATED, with more rampant dishonesty.

The Washington Post: For Or Against Wealth Tax? Both!

Posted on July 15, 2009
The Washington Post has a curious, almost humorous, editorial today arguing that ?there is no case to be made for the House Democratic majority's proposal to fund health-care legislation through an ad hoc income tax surcharge for top-earning households...

Colorblindness Anyone?

Posted on July 15, 2009
On Volokh, David Bernstein proposed a question for Sotomayor: In his dissent in Plessy v. Ferguson, Justice John Marshall Harlan wrote, ?Our Constitution is color-blind, and neither knows nor tolerates classes among citizens.? Do you agree? I sent him an email, which I reproduce below out of a conviction that the benefit of good emails should not be restricted to the lucky recipient (that, and his post didn?t allow comments): Great question! I've been arguing for years that preferentialists actually agree with the principle underlying the holding in Plessy, not Harlan?s dissent, just as they agree with the racist ?moderates? who successfully blocked the ?radicals?? effort to include colorblind language in the 14th Amendment...

Another Fish Tale

Posted on July 14, 2009
George Will, showing admirable restraint and even generosity, once described Stanley Fish as ?an intellectual provocateur with a taste for safe targets? who, using ?slippery language,? wraps himself in the mantle of bravery while attacking ?straw men? and who, while enjoying ?seeming to be naughty, tamely opts for dogmatic denial? that the twin icons on ?today?s academic altar,? race and gender, pose any threats to academic integrity...

Where Do The Find These People

Posted on July 13, 2009
Harold Jackson is identified as an opinion columnist for the Philadelphia Inquirer. Based on this column maybe that?s appropriate, for he certainly seems to have far more opinions than facts. Here are some of them: 1. Affirmative action was and is justified because, well, just look at him...

Whither The NAACP?

Posted on July 13, 2009
The NAACP was born 100 years ago to promote equal justice under law. For its first 60 or 70 years, during which it saw its greatest triumphs, that meant fighting not only segregation but all discrimination based on race. That goal was abandoned when it turned, like most liberal organizations, from opposing preferential treatment of whites to supporting preferential treatment of blacks, a policy that has so far failed to attract a satisfactory justifying theory or principle...

UPDATE!

Posted on July 13, 2009
Recovery As Distraction has been UPDATED.

Mickey Kaus I And II

Posted on July 13, 2009
A few days ago Mickey Kaus linked to a recent post of mine critical of disparate impact as part of his own criticism of the ?smug, reified apocalypticism? of Stanford law professor Richard Thompson Ford?s Chicken Little overreaction to the Ricci decision...

Recovery As Distraction

Posted on July 12, 2009
It has long seemed to me that President Obama has no interest in economic recovery, except for his recognition that double-digit unemployment poses a threat to his re-election. His interest is in transforming the country, not restoring it to what it was...

UPDATE!

Posted on July 12, 2009
Judging Sotomayor?s Judgment has been UPDATED.

Judging Sotomayor?s Judgment

Posted on July 11, 2009
The National Journal?s Stuart Taylor Jr. has an important post on how the three-judge panel of the Second Circuit, one of whom was Judge Sonia Sotomayor, almost succeeded in hiding the Ricci case from their colleagues, perhaps violating a 2nd Circuit rule in the process...

Lani Guinier And Susan Sturm, Trying To Put Out The Fire

Posted on July 11, 2009
More sturm and drang (?in which individual subjectivity and, in particular, extremes of emotion [are] given free expression in response to the confines of rationalism...?) on disparate impact. Or more accurately, Sturm and Guinier. Who knew that Lani Guinier was an expert on firefighting and the methods fire departments should use to staff their leadership ranks? Actually we all should have known, since Harvard law professor Guinier and Columbia law professor Susan Sturm, her co-author of today?s New York Times OpEd on ?Trial by Firefighters,? co-authored a book, Who?s Qualified?, that purports to tell all organizations how they should go about hiring and promoting (or more accurately, how they should not ? by using tests)...

Merit?

Posted on July 08, 2009
Many critics of affirmative action based their criticism ? too heavily, in my opinion ? on its affront to merit, just as too many supporters mistakenly assume that affection for merit provides the only basis for criticism. I have argued with this merit mania many times, such as here...

?Rights For Some People??

Posted on July 08, 2009
I wonder whether the title of an article on Inside Higher Ed this morning, Rights For Some People, was wittingly or unwittingly ironic. It begins: Should someone who teaches human rights back human rights for all people? That?s the question being raised by some students at New York University?s law school, who are upset that a visiting professor in the fall semester, slated to teach human rights law, is Thio Li-ann of the National University of Singapore, an outspoken opponent of gay rights...

UPDATE!

Posted on July 06, 2009
Please take a look at the UPDATE to Obama?s Beliefs ... Or Not, where I draw upon the wisdom of no less an authority on liberalism than Senate Majority Leader Harry Reid.

Secession, Democratic Movements, And American Anti-Americanism

Posted on July 05, 2009
Ilya Somin?s two recent Volokh Conspiracy posts on secession led me to reread a similar one of my own from several years ago, Secession, Then And Now, which began as follows: In a remarkable OpEd in the Washington Post yesterday, Anne Applebaum lambasted ?The Freedom Haters,? by which she meant a part of the Western left ? or rather the Western far left ? [that] is now so anti-American, or so anti-Bush, that it actually prefers authoritarian or totalitarian leaders to any government that would be friendly to the United States...

More Ricci Fallout...

Posted on July 05, 2009
The estimable Mickey Kaus, citing the estimable Walter Olson, worries about employers who will get sued if they ignore the results of tests that have a disparate impact ... and sued if they don?t, but he goes on to argue that ... Justice Anthony Kennedy?s solution to this problem in the Ricci case ? that a city can?t throw out a job test that winds up promoting whites and no blacks unless there is a ?strong basis in evidence? that it would lose a subsequent discrimination lawsuit ? seems an unsatisfying solution to the litigation vise...

Obama?s Beliefs ... Or Not

Posted on July 03, 2009
In an interview yesterday with the Associated Press, President Obama attempted to explain (or disguise) his views on affirmative action. ?I don't think that hiring on the basis of race ... alone is constitutionally possible.? Obama, a former teacher of constitutional law, said, ?I?ve always believe[d] that affirmative action was less of an issue or should be less of an issue than it has been made out to be in news reports...

Does Disproportionate Always Equal Racist?

Posted on June 29, 2009
According to new material delivered to the Senate, when Sonia Sotomayor was on the board of the Puerto Rican Legal Defense and Education Fund (now called LatinoJustice PRLDEF), she and two other directors signed a memo that argued against reinstating the death penalty in New York state, making the case that capital punishment is racist because it is disproportionately imposed on minorities...

Ricci et al. Vindicated; Ricci Reversed!

Posted on June 29, 2009
The Supreme Court has reversed the Sotomayor-sitting Second Circuit and ruled in favor of Frank Ricci and his fellow New Haven firemen who would have been promoted but for their race. In doing so it rejected the argument of the Obama administration, and favored by the four dissenting Justices (See Footnote 10 of Justice Ginsburg?s dissent, quoted here), that would have vacated the Second Circuit?s decision and remanded the case to the District Court for fact-finding on the city?s intent in refusing to act on the results of its test...

Would Congress Pass The Diversity Requirement The ABA Imposes On Law Schools (And Colleges Impose On Themselves)?

Posted on June 26, 2009
U.S. Capitol is too white, say critics

Surprise! If The Government Gives People Money ...

Posted on June 26, 2009
... people have more money. WASHINGTON -- The income of Americans soared in May because of the government?s economic stimulus.... Disposable personal income in May -- income after taxes -- jumped 1.6%, driven by the aid package President Barack Obama signed in February to spur the economy...

Does Accreditation Have A Disparate Impact?

Posted on June 26, 2009
Several years ago I discussed on a number of occasions (many of them linked here) controversy over an American Bar Association accreditation standard that virtually requires law schools to employ racial preferences in admissions in order to promote ?diversity...

ACRI On The Ballot!

Posted on June 23, 2009
Both houses of the Arizona legislature have now approved the Arizona Civil Rights Initiative, which will appear on the ballot in 2010! If voters approve the measure, Arizona will join the voters of California, Washington, Michigan, and Nebraska, all of whom have amended their state constitutions to prohibit the state from discriminating against, or giving preference to, anyone based on race, ethnicity, or gender...

Supremes Preserve But Gut, Or At Least Limit, Section 5

Posted on June 23, 2009
Attentive readers will (I hope) have noticed that I?ve not posted much lately. My wife and I have been in California visiting our daughter (who, by the way, has just had an important article accepted by a major journal; more on that some time later), and I?ve fallen behind...

Gross Coverage

Posted on June 19, 2009
To be fair, my title should be ?Gross Coverage,? since I am referring to the sadly typical press coverage of the recently released Supreme Court decision in Gross v. FBL Financial Services (08-441), an age discrimination case under the Age Discrimination in Employment Act...

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