A washingtonpost.com article from: s-gerber@onu.edu

Marty Lederman marty.lederman at comcast.net
Wed Mar 8 12:47:29 PST 2006


OK, so it wasn't gemlike.  Sorry about that.  (Thanks for the kind words, though.)  No doubt I overstated it.  Let's put it this way:  As the Harvard and Columbia briefs demonstrated (and didn't Jed Rubenfeld also distance himself from some of the arguments in the Yale brief?), many opponents of the SA (myself included) were concerned about the prospects for expressive association and/or Spending Clause doctrines if the Court were to affirm -- i.e. we weren't crazy about the broader implications of some of the plaintiffs' arguments, even if we were entirely sympathetic to the plaintiffs' policy objections to the SA.   Were we a tiny minority?  I really don't know.  And, to be clear, I assume that most or all of the actual plaintiffs hoped to prevail.

More importantly, and more to Nelson Lund's point, I think very few opponents of the SA expected the Court to affirm -- perhaps I'm wrong about that, too, but I don't recall hearing anyone predict a victory. 

  
----- Original Message ----- 
From: "Scott Gerber" <s-gerber at onu.edu>
To: "Marty Lederman" <marty.lederman at comcast.net>
Cc: <conlawprof at lists.ucla.edu>; "Nelson Lund" <nlund at gmu.edu>
Sent: Wednesday, March 08, 2006 3:29 PM
Subject: Re: A washingtonpost.com article from: s-gerber at onu.edu


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
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>>>     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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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.


------------------------------------------------------------------------


_______________________________________________
>To post, send message to Conlawprof at lists.ucla.edu
>To subscribe, unsubscribe, change options, or get password, see 
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>
>Please note that messages sent to this large list cannot be viewed as 
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posted; people can read the Web archives; and list members can (rightly 
or wrongly) forward the messages to others.

--------------------------------------

Scott Gerber
Law College
Ohio Northern University
Ada, OH 45810
419-772-2219
http://www.law.onu.edu/faculty/gerber/
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