SLevinson at law.utexas.edu
Thu Jun 16 01:31:26 PDT 2005
http://www.nytimes.com/2005/06/16/politics/16tobacco.html?th&emc=th is a story in today's NYTimes about the Justice Department's decision to ask for only $10 billion in damages from tobacco companies that have engaged in a variety of fraudulent behavior, as against the $130 billion originally asked for. The overall story concerns whether there has been "political interference" with the prosecution. Justice Department officials insist the change of policy, bitterly opposed by the attorneys who have been conducting the case for the past five years, was dictated by a recent appellate court decision regarding the amount of damages.
What interests me is comparing this narrative of DOJ fidelity to judicial decisions with what appears to be a quite different policy of the DOJ (and the Bush Administration) with regard to complying with the detainee decisions last year. Though it is probably tendentious to describe the Administration as "defying" the Court (the decisions were murky enough that it is unclear what "defiance" would mean in this context), no one outside the Administration and its ardent defenders would describe the DOJ as exhibiting any great eagerness to change policy vis-a-vis detainees.
So what does one do with these two recent episodes? Are they just different, so that one can't infer anything about the likely motivation of the DOJ in the tobacco case from what appears, on the surface, to be a quite different view of judicial authority in the detainee cases? Am I simply being my usual unfair self and partisan self in offering the comparison as a way of suggesting that the Skull&Bones #3 authority in the DOJ, whose law firm had represented big tobacco, decided to reward major contributors to the Republican Party by limiting the damages being asked for, since the narrative of strict compliance with the appellate decision does not strike me as plausible? I take it that this is related to our professional tasks as constitutional law teachers insofar as it is an illustration of the difficulties involved in ascertaining the "motives" of legal actors. Do we need "smoking guns" in the nature of incriminating documents or can we infer motives by looking at overall contexts? (I take it, incidentally, that this question was at the heart of the decision earlier this week in the most recent Texas death penalty case, where the Court (properly) dismissed the argument that the prosecutor was not engaging in racial discrimination in the process of jury selection simply because he put forth (or manufactured) ostensibly "neutral" reasons and insisted that his heart was pure.)
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