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Richard Painter
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Strict scrutiny is appropriate here too. Judge Calabresi should not speak about cases pending before his court or the lower courts, but is there really a risk to the course of justice if he speaks about a case now before the Supreme Court? I know what the rule says, but it needs to be a rule of reason and applying it in this circumstance is not reasonable. RWP
Some of these web sites could have been offering securities for sale to the public. If so, the sites fit within the definition of a prospectus (see SEC rule below). The SEC staff members will argue that they were only doing their jobs. Please note that a live presentation would not constitute a prospectus, although it could still constitute an offer of securities within the meaning of Section 5. SEC Rule 405 (definitions of terms) Graphic communication. The term graphic communication, which appears in the definition of "write, written" in section 2(a)(9) of the Act and in the definition of written communication in this section, shall include all forms of electronic media, including, but not limited to, audiotapes, videotapes, facsimiles, CD-ROM, electronic mail, Internet Web sites, substantially similar messages widely distributed (rather than individually distributed) on telephone answering or voice mail systems, computers, computer networks and other forms of computer data compilation. Graphic communication shall not include a communication that, at the time of the communication, originates live, in real-time to a live audience and does not originate in recorded form or otherwise as a graphic communication, although it is transmitted through graphic means.
With respect to law professors, my point is that they write about the law differently than lawyers and judges. They take varying degrees of poetic license with case law, legislative history and sometimes facts that lawyers and judges do not. Some law professors are beyond the pale; most are reasonably accurate in their descriptions, but I would not use their work in legal opinions or briefs. I would use it instead in making policy. See the recent comments of Chief Justice Roberts about law reviews. Some law professors -- and I put Professor Liu in this category - usually describe cases with sufficient accuracy so that their work actually is useful for the practice or law and judging, not just discussion of policy. Professor Liu's op-ed on Judge Roberts at the time of the Supreme Court nomination in my view fell short of this standard. Nobody that I recall paid much attention to it. That does not mean that Professor Liu's work on the whole reflects carelessness or is defective, even by the standards of a lawyer or judge. I don't agree with some of it, but it is highly professional. RWP
With respect to law professors, my point is that they write about the law differently than lawyers and judges. They take varying degrees of poetic license with case law, legislative history and sometimes facts that lawyers and judges do not. Some law professors are beyond the pale; most are reasonably accurate in their descriptions, but I would not use their work in legal opinions or briefs. I would use it instead in making policy. See the recent comments of Chief Justice Roberts about law reviews. Some law professors -- and I put Professor Liu in this category - usually describe cases with sufficient accuracy so that their work actually is useful for the practice or law and judging, not just discussion of policy. Professor Liu's op-ed on Judge Roberts at the time of the Supreme Court nomination in my view fell short of this standard. Nobody that I recall paid much attention to it. That does not mean that Professor Liu's work on the whole reflects carelessness or is defective, even by the standards of a lawyer or judge. I don't agree with some of it, but it is highly professional. RWP
Toggle Commented Apr 9, 2010 on Liu's secret dustbin at Legal Ethics Forum
1. Milliken (1974).(5-4 holding that courts may not order busing across district lines). His criticisms of Milliken appear in articles Brown, Bollinger, and Beyond, 47 Howard L.J. 705, 724-27 (2004), and School Choice to Achieve Desegregation, 74 Fordham L. Rev. 791, 792-93 (2005). He expressed concern that Milliken contributed to the isolation of inner cities from surrounding suburbs. .However, he did not call for Milliken to be overruled by the courts and he acknowledged that Milliken seems firmly embedded in the law (74 Fordham L. Rev. at 793). He has not urged the courts to revisit this core holding on busing across district lines. Instead, he proposed school choice initiatives, including school vouchers, to create incentives for urban-suburban integration of public schools (pp. 808-822 of 74 Fordham L. Rev.). Vouchers? School choice? Sounds to me like a good plan for putting Milliken in the dustbin of history. If the teachers unions are upset at this, they can write the Judiciary Committee. In any event, all of this is out there in the public domain. Finally, it is common knowledge that the entire line of school busing cases is in fact headed for the dustbin because that remedy does not work. Anyone who has been in the back of a public school bus should know that. For quite some time now judges, policy makers and law professors (including Liu) have been looking at other remedies. 2. Rodriguez (1973) (5-4 holding that education is not a fundamental right and a school funding scheme based on local property taxes did not violate equal protection). His criticisms are published at 47 Howard L.J. at 722-24, 765-68. He has not called for Rodriguez to be overruled either. In another article, he acknowledges that Rodriguez reflects "considerations of judicial restraint arising from the countermajoritarian difficulty and limitations on institutional competence" (Education, Equality, and National Citizenship, 116 Yale L.J. 330, 338 (2006)). The principal thrust of his scholarly work on equal educational opportunity in the Yale article and elsewhere has thus been directed at Congress and other policymakers, not the courts. Once again it is common knowledge that Rodriguez reveals pathetic facts about inequality in primary and secondary education. Conservatives and liberals have been working for years to put this state of affairs in the “dustbin”. How to get there is the more difficult question that cannot be answered by such glib phrases. Judicial activists want courts to solve the problem of educational inequality. Proponents of judicial restraint want the legislature and school districts to sort it out. Liu seems to fall in the latter category, although he might do more as a judge than the conservative judges on the courts. In any event, his law review articles give some hint at how he might approach this problem; the “dustbin” quote does not. 3. Adarand (1995) (5-4 affirmative action holding extending the principles of Croson (1989) to the federal government). His writings have agreed with Adarand's central holding that racial classifications must be subject to strict scrutiny. See Seattle and Louisville, 95 Cal. L. Rev. 277, 280-81 (2007); Affirmative Action in Higher Education, 33 Harv. C.R.-C.L. L. Rev. 381, 383 (1998). He disagreed with Croson - and, by extension, Adarand - to the extent that those cases hold that, under strict scrutiny, remedying societal discrimination (as opposed to particularized discrimination by a government entity) is not a compelling interest that can justify affirmative action. See 47 Howard L.J. at 759-63. His view on that point, though contrary to the majority of a divided Court, is hardly radical as many people – including the dissenting Justices -- expressed concerns when the decision was handed down. Liu obviously does not like these two cases and supports affirmative action in some contexts where legislatures and other policy makers choose to use it. He is troubled when the judiciary strikes it down. Once again, for opponents of affirmative action this is bad news. For proponents of judicial restraint this is probably good news (although Liu would use strict scrutiny for racial classifications including affirmative action which means some affirmative action plans would get struck down).. Affirmative action is a policy that goes back to the Nixon and Ford Administrations. Critics are skeptical and feel that forty years later it is time to try something else. Some believe racial classifications are inherently immoral and unconstitutional. Professor Liu is inclined to continue to use affirmative action or at least he feels compelled to urge courts to allow policy makers to continue to use it when they want to (within limits because of the strict scrutiny standard that he does not contest and that courts will apply). We know that Liu does not like the majority holding in cases like Adarand. This much is obvious from his law review articles and other works he provided to the Committee. The “dustbin” quote is colorful but it doesn’t add anything to the analysis.
Toggle Commented Apr 9, 2010 on Liu's secret dustbin at Legal Ethics Forum
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Apr 2, 2010