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

[Barksdale, Yvette]

Hi Scott

Do you feel the same way about South Dakota's new abortion law? Are they
also arrogant under your analysis? They enacted a law, which is clearly
unconstitutional under current law, specifically in order to test the
waters, and try to get the law changed. 

Although they have not themselves, obviously filed suit, they are
clearly contemplating that other people will and this matter will end
up, they hope, before the Supreme Court. 

However, at this point, the prevailing wisdom is that there is no chance
that their statute could survive with the current court because there
are not enough anti-Roe horses on board. There has been some discussion
that perhaps Stevens, being elderly, will not outlast Bush, and so
therefore there might be another Anti-Roe pick (of course the likelihood
of this seems slim - since a) Bush was never really strongly favored
anti-abortion justice to begin with  - see Miers, and any such pick
would be so close to 2008 Presidential elections - it is likely
Republicans would prefer to leave the matter as an issue in the 2008
elections, rather than to give the anti-abortion people what they want
ahead of time.) 

Indeed, the South Dakota law, seems to make the a Bush anti-abortion
pick even less likely, since the South Dakota law and accompanying
lawsuit simply focuses public attention even more on the practical
consequences of such an anti-abortion Justice. 

So, one could argue this is a similar Don Quixote move, this one costing
other people (South Dakota taxpayers)  a ton of money in litigation
expenses. 

Yet, nevertheless South Dakota is proceeding bravely, on what clearly
seem to be moral grounds. 

Might it be that law professors who joined this lawsuit also were
similarly acting on moral grounds, hoping, perhaps against hope,  that
the Court would find some way to hold in their favor. 

And I am not so sure that it was objectively clear that the lawsuit
would fail. 

For example, couldn't the statutory interpretation have carried the day
had the Court been inclined to use it usual textualist interpretative
method  -After all the statute text requires "equal access" with other
employers . Here, the law schools also barred private employers with
discriminatory employment practices. A plain language analysis would
certainly suggest barring military recruiters on the same ground would
be according "equal access."   Instead, the Court concluded, with almost
no supporting analysis, that despite the clear language of the statute,
Congress intended "equal " military access to mean "mandatory preferred"
military access, irregardless of the school's general recruitment
requirements. 

Ok fine. Presumably, the Court was of the view that this matter  was one
for the political process to resolve and not for the Courts. But was
that result clearly  predictable ahead of time?  

So again, what makes the law profs suit any more arrogant than South
Dakota's incitement of pipe dream litigation?  


yb 

***/////////////////////////////////////////***
 
Professor Yvette M. Barksdale
The John Marshall Law School
315 S. Plymouth Ct. 
Chicago, IL 60604
(312) 427-2737 (phone)
(312) 427-9974 (fax)
 
***/////////////////////////////////////////***

-----Original Message-----
From: conlawprof-bounces at lists.ucla.edu
[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Scott Gerber
Sent: Wednesday, March 08, 2006 2:29 PM
To: Marty Lederman
Cc: conlawprof at lists.ucla.edu
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