No backflips (was: NYTimes.com: Don't Listen to What the Man Says)
whoooo26505 at yahoo.com
Mon Jun 18 14:58:55 PDT 2007
... for what it is worth, there is nothing improper either in law or politics for justices to have reasonable disagreements about a jurisdictional construct. The real headline, therefore, is not "right wing outvotes left wing." It is that, once again, imprudent public policy results from the blind mischief of both excess formalism and what I would call a rather harsh (and mindless) version of positivism. Hence, I would seriously resist the devils in the robe theory that we get so much from left wing academics and focus more rationally on the way that the selection of an inflexible decision constituence produces occasional mischief. It is true that bad facts can make bad law, but it is just as true, I think, that blind rule-following can make bad results, too. We live in an age where we equate discretion with politics and rules with fairness; when, in fact, discretion wisely used can be fairness without politics and when rule following can actually injure.
Dr. Sean Wilson, Esq.
Penn State University
SSRN papers: http://ssrn.com/author=596860
Conference papers: http://ludwig.squarespace.com/research-agenda/
----- Original Message ----
From: Malla Pollack <mpollack at ajsl.us>
To: daviwag at regent.edu; Paul Finkelman <pfink at albanylaw.edu>; jfnbl at earthlink.com; conlawprof at lists.ucla.edu; crossf at mail.utexas.edu; s-gerber at onu.edu
Sent: Monday, June 18, 2007 5:17:31 PM
Subject: RE: No backflips (was: NYTimes.com: Don't Listen to What the Man Says)
As I read the majority, the only reason that Bowles was not give the extra
time mistakenly allowed by the trial judge is that this time limit is
JURISDICTIONAL -- ie an appeal based on a late-flied notice is outside the
power allowed federal courts by Congress. BUT as the dissent pointed out,
that conclusion is very, very, very etc shakey both as a matter of statutory
construction and because it carefully ignores the most recent line of cases
on the drawing of this line.
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