A washingtonpost.com article from: s-gerber@onu.edu
Frank Cross
crossf at mail.utexas.edu
Wed Mar 8 12:45:15 PST 2006
I have no insight into actual motivations.
But I would think it was possible that this action was pursued by the law
schools even without an expectation of winning. This could be because the
appeal was a symbolic expression of a commitment to gay rights, rather the
alternative which would be spun as "caving in."
At 02:29 PM 3/8/2006, Scott Gerber wrote:
>With all due respect to Marty Lederman, whose posts I usually find
>doctrinal gems, I find it difficult to believe that the law professors
>who sued the federal gov't "hoped" they would lose.
>
>I think Nelson Lund has it almost correct. I think it's more arrogance
>than cynicism that explains why the lawsuit was filed.
>
>Scott
>
>
>
>
>Marty Lederman wrote:
>
>
> >I think it's a mistake to assume that most, or even many, law
>professors opposed to the Solomon Amendment expected that the Court
>would affirm the Third Circuit. Nelson, you're right that it was a
>very easy case to predict: Do you know any law professors who were
>surprised by reversal?
> >
> >Nor do I think it is even fair to assume that many law professors
>"hoped" for an affrmance. As the Harvard and Columbia briefs
>demonstrated, such a holding might have risked either a serious
>strengthening of Dale or a significant weakening of the Spending Clause
>precedents on which many anti-discrimination statutes (e.g., title VI,
>title IX, RLUIPA) are based -- either of which would be cause for
>serious concern among many of us who are opposed to the Solomon
>Amendment.
> >
> >----- Original Message -----
> >From: "Nelson Lund" <nlund at gmu.edu>
> >To: <conlawprof at lists.ucla.edu>
> >Sent: Wednesday, March 08, 2006 2:47 PM
> >Subject: Re: A washingtonpost.com article from: s-gerber at onu.edu
> >
> >
> >>I would be among the last to assume that a unanimous opinion must
> >> necessarily be correct, even in a case in which I was one of a handful
> >> of law professors who signed an amicus brief on what turned out to be
> >> the winning side of the case.
> >>
> >> But this did seem to me to be a remarkably easy case in which to
>predict
> >> the outcome, and it therefore does raise for me a number of real
> >> questions about the behavior the legal academy.
> >>
> >> I wonder whether the following hypothesis, if confirmed, might answer
> >> some (not all) of those questions: legal academics have become so
> >> thoroughly imbued with cynicism (or legal realism, or whatever other
> >> label one likes) about judges that many of them seriously believed
>that
> >> the Court (or at least a substantial minority of its members) might
> >> create a kind of 'gay rights' exception to the First Amendment
>doctrines
> >> that apply elsewhere. If this hypothesis were confirmed, I suppose the
> >> next question would be whether the hope for such an exception had some
> >> basis in the existing case law.
> >>
> >> Nelson Lund
> >> George Mason
> >>
> >>
> >> Rick Duncan wrote:
> >>> The unanimous opinion is striking. I am anxious to see whether this is
> >>> at least in part due to the leadership of the new CJ.
> >>>
> >>> The Will column was great. Particularly his quotation of the CJ's line
> >>> about "how high school students can appreciate the difference between
> >>> speech a school sponsors and speech the school permits....Surely
> >>> students have not lost that ability by the time they get to law
>school."
> >>> Hmmm. But perhaps by the time they receive tenure on a law faculty?
> >>>
> >>> This is the rhetoric of Scalia coming from the pen of the new Chief!
> >>>
> >>> Cheers, Rick Duncan
> >>>
> >>> Scott Gerber <s-gerber at onu.edu> wrote:
> >>>
> >>> Is a unanimous opinion, with no concurring or dissenting opinions,
>even
> >>> from the liberals on the Court, a "good fight"? I don't think so,
> >>> especially when our brave soldiers were dying on battlefield when
>it
> >>> was being waged.
> >>> SDG
> >>>
> >>>
> >>> Miguel Schor wrote:
> >>>
> >>>
> >>> > Scott: While I enjoyed the article, it is clear that George Will
> >>> got
> >>> >it wrong. Academics are supposed to piss off the citizenry by
> >>> fighting
> >>> the
> >>> >good fight. Certainly Socrates was right when he argued that
> >>> questioning
> >>> >dogma was the most important political role of a thinker. Not
>that I
> >>> would
> >>> >want to carry the analogy too far as he was put to death for his
> >>> pains
> >>> and
> >>> >he also thought it wrong for teachers to accept remuneration . .
>.
> >>> Miguel
> >>> >
> >>> > -----Original Message-----
> >>> >From: conlawprof-bounces at lists.ucla.edu
> >>> >[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of
> >>> s-gerber at onu.edu
> >>> >Sent: Wednesday, March 08, 2006 10:33 AM
> >>> >To: conlawprof at lists.ucla.edu
> >>> >Subject: A washingtonpost.com article from: s-gerber at onu.edu
> >>> >
> >>> >! You have been sent this message from s-gerber at onu.edu as a
> >>> courtesy
> >>> >of washingtonpost.com
> >>> >
> >>> > Personal Message:
> >>> > I thought the attached op-ed might be of interest to the list.
> >>> > Scott
> >>> >
> >>> > Professors of Pretense
> >>> >
> >>> > By George F. Will
> >>> >
> >>> > The institutional vanity and intellectual slovenliness of
> >>> America's
> >>> >campus-based intelligentsia have made academia more peripheral to
> >>> civic
> >>> life
> >>> >than at any time since the 19th century. On Monday its place at
>the
> >>> >periphery was underscored by the Supreme Court.
> >>> >
> >>> > To view the entire article, go to
> >>>
> >http://www.washingtonpost.com/wp-dyn/content/article/2006/03/07/AR2006030701
> >>> >201.html?referrer=emailarticle
> >>> >
> >>> >
> >>> > Would you like to send this article to a friend? Go to
> >>> >
> >>>
> >http://www.washingtonpost.com/ac2/wp-dyn/emailafriend?contentId=AR2006030701
> >>> >201&sent=no&referrer=emailarticle
> >>> >
> >>> >
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> >>> >
> >>> > _______________________________________________
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> >>> >
> >>>
> >>> --------------------------------------
> >>>
> >>> Scott Gerber
> >>> Law College
> >>> Ohio Northern University
> >>> Ada, OH 45810
> >>> 419-772-2219
> >>> http://www.law.onu.edu/faculty/gerber/
> >>> _______________________________________________
> >>> To post, send message to Conlawprof at lists.ucla.edu
> >>> To subscribe, unsubscribe, change options, or get password, see
> >>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >>>
> >>> Please note that messages sent to this large list cannot be viewed
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> >>>
> >>>
> >>>
> >>>
> >>> Rick Duncan
> >>> Welpton Professor of Law
> >>> University of Nebraska Col! lege of Law
> >>> Lincoln, NE 68583-0902
> >>>
> >>>
> >>> "When the Round Table is broken every man must follow either Galahad
>or
> >>> Mordred: middle things are gone." C.S.Lewis, Grand Miracle
> >>>
> >>> "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
> >>> numbered." --The Prisoner
> >>>
> >>>
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> >>> _______________________________________________
> >>> To post, send message to Conlawprof at lists.ucla.edu
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>private. Anyone can subscribe to the list and read messages that are
>posted; people can read the Web archives; and list members can (rightly
>or wrongly) forward the messages to others.
> >> _______________________________________________
> >> To post, send message to Conlawprof at lists.ucla.edu
> >> To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >>
> >> Please note that messages sent to this large list cannot be viewed as
>private. Anyone can subscribe to the list and read messages that are
>posted; people can read the Web archives; and list members can (rightly
>or wrongly) forward the messages to others.
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>
>------------------------------------------------------------------------
>
>
>_______________________________________________
> >To post, send message to Conlawprof at lists.ucla.edu
> >To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
> >
> >Please note that messages sent to this large list cannot be viewed as
>private. Anyone can subscribe to the list and read messages that are
>posted; people can read the Web archives; and list members can (rightly
>or wrongly) forward the messages to others.
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>--------------------------------------
>
>Scott Gerber
>Law College
>Ohio Northern University
>Ada, OH 45810
>419-772-2219
>http://www.law.onu.edu/faculty/gerber/
>_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see
>http://lists.ucla.edu/cgi-bin/mailman/listinfo/conlawprof
>
>Please note that messages sent to this large list cannot be viewed as
>private. Anyone can subscribe to the list and read messages that are
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>wrongly) forward the messages to others.
**********************************************************
Frank Cross
McCombs School of Business
The University of Texas at Austin
1 University Station B6000
Austin, TX 78712-1178
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