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Unanimously Wrong:

I now have a new paper up on SSRN on Rumsfeld v. FAIR, the Supreme Court's decision of last March upholding the constititutionality of the Solomon Amendment.

I'd appreciate any constructive comments here or at my law school email address from those who have the time to read the paper.

Tracy Johnson (www):
I just read your article "Unanimously Wrong."

I don't know the case, neither am I a lawyer. I have only this year subscribed to VC (because I know Vladimir and worked on the same computer platform Eugene worked on years past.)

Anyway it is not this review in particular I have a problem with. Since subscribing to VC I have looked at several person's reviews of other cases. In a nutshell my problem is:

1. The review doesn't tell me who won the case.
2. The review doesn't have a summary paragraph saying what the whole thing was about.

My question is: Is this a lawyer thing? Like a "standards and practices" about data redundancy, as though since everyone knows what the case is about and who won, therefore it isn't supposed to be repeated?

Yours,
Woefully Ignorant
8.18.2006 4:55pm
Ubertrout (mail) (www):
The case in question is Rumsfeld v. FAIR. The question (to simplify) was whether a law which denies government funds to universities which do not grant equal access to military recruiters because of the military's policy regarding homosexuals is unconstitutional. It is the kind of thing that most people here kind of take for granted people knowing.
8.18.2006 5:14pm
RBG (mail):
I skimmed the article briefly and hope to read it in its entirety this evening, but my initial impression, unfair though it may be, is this: until you've made a sincere effort to grapple with Grove City and Bob Jones University, I will remain largely unconvinced by attempts to show that FAIR was the constitutional horror show that many activists and academics have made it out to be. You object at one point in the article that the FAIR court was too cavalier and contemptuous of the schools' alleged liberty interests: "With such momentous cultural and legal issues at stake, we needed something more than an opinion that treats the liberty claims almost with contempt." Well, really now. As if that has not been the response of the courts and of most legal academics to the liberty interests set forth by institutions such as Grove City and Bob Jones. Forgive me if I can't help regarding the alleged contempt of the court for a position favored by those same academics with a bit of schadenfreude.

I would have been happy with the opposite result in FAIR had the Court reversed Grove City and Bob Jones. I am equally happy with the result that the Court actually delivered. I cannot for the life of me understand how anybody with a modicum of intellectual honesty can wish for a contrary result in FAIR while also insisting that the Court leave those other two decisions intact--unless, that is, they unabashedly hold that some forms of speech are more deserving of constitutional protection than others. And if that's their view, I certainly wish they'd be frank about it.
8.18.2006 7:02pm
Bottomfish (mail):
To this nonlawyer, the law schools' banding together and and bringing Rumsfeld vs FAIR before the SC must have had a chilling effect on the freedom of their students and faculty to voice messages in favor of the military policy. The law schools are acting like New Hampshire in compelling motorists to display the state motto. Of course it will immediately be said that the law schools are not government actors. True but given their immense influence, they look like quasi-government actors to me.
8.18.2006 7:55pm
jim:
1) Is this piece going into the next Cato Supreme Court Review book as the SSRN subtitle suggests? While by the end I do find the argument fairly convincing, the style of the paper, especially near the beginning, seems odd as compared with other pieces in that publication. Much initial space is spent without factual assessment of the merits of the case, the developed thesis of the piece is buried, and the tone occasionally seems sarcastic or defensive. I think you can safely drop several things — the discussions of the Justices' motives, the possibility of unanimous decisions being wrong or ill-reasoned, the eliteness of law professors, etc. — without diminishing the argument. Perhaps some material in the conclusion could be moved to the intro.

2) You don't seem to directly address the more sophisticated version of the argument you reject on page 13, which might go as follows:

The law schools are free to say that they oppose discrimination. The issue here is the ability of the law schools to express that opposition in a way that makes their stated positions appear genuine — to "walk the walk" and "put their money where their mouth is." It thus seems arguable that the true expressive act is not in allowing military recruiters, but in accepting dirty money. If that is the case, then the school's inability to express opposition to discrimination is not a condition of the receipt of the money, it is a consequence of the school's decision to accept the money. The government is not stripping the school of a right to speak, but is proving the school's speech to be hollow.

This analysis would seem to hold the Solomon Amendment constitutional, but would still find the possible laws you discuss on page 14 to be unconstitutional; and while it seems like you do address this somewhat in section III.B, I wish there were a more direct treatment.

3) More discussion about the relationship between this case and Title VI and IX might help to clarify your position to the reader. It also might help you to make the claim that the Solomon amendment serves no compelling government interest if you compared it to something that you feel is a compelling interest. Additionally, if I think South Dakota v. Dole was wrong is there any reason for me to think this decision doesn't follow logically from that one?

4) The sentence that runs from page 25 to 26 is unclear to me.
8.18.2006 10:12pm
Brian G (mail) (www):
I can't figure out why you used that title given your admissions later on that the decision was probably right. With all due respect, it is a policy argument disguised as a legal one. You gave serious short shrift to Congress' power to raise armies, and frankly I thought your unconstitutional conditions argument was highly unpersuasive. In sum, I felt like I was re-reading the failed briefs, which I didn't think much of either. Sorry, but I ain't gonna lie to you.
8.18.2006 11:09pm
MJ:
Professor:

1) You are dismissive of others' concern about Title VII and IX (whether liberals protection of or conservatives use of the programs to argue in support of the Amendment)and never engage them. If the issues are so inconsequential, surly you can spare a sentence or two to tell me why?

2) You extrapolate too much from the reference to 9/11 by the Court in an unfair attempt to dismiss the Court's reasoning by impugning its integrity and/or intestinal fortitude. Essentially, you imply that the Court's reasoning is the result of an overly deferential stance to the Government caused by 9/11. This is a backhand swipe. Whether the Court ruled for or against the Government in this case, it probably would have referenced 9/11. More importantly, your thesis is belied by other recent cases where the Court has struck down the President's wartime actions. Your questionable pyschological analysis of the Court's motives weakens the rest of your argument.

3) You are equally unfair to Congress. You lach on to some statements made by Congressmen to argue that they were not really concerned with recruitment and then state there is no proof that recruitment was any problem (or at least that Congress had no proof). I am sure some Congressmen were motivated by sympolic purposes. So what? That doesn't mean Congress was. I am equally certain some congressmen were concerned about the economic stratification of our armed forces (this is something liberals are always concerned about, until it comes to FAIR) and the ability to recruit at elite colleges. You attempt to avoid this concern by arguing that Congress had only one motive. Perhpas it had many, isn't this more logical when we are dealing with so many people? Does the presence of one impure motive render the statute unconstitutional? These are questions that you normally would ask your students, but the answers make your analysis weaker.
8.18.2006 11:25pm
Eugene G. Bernat (mail):
I have not had the opportunity to read the article, but will, however, I just must take this opportunity to say that it seems nothing could be wrong when you have Scalia and Ginsburg on the same page.
8.18.2006 11:28pm
Dale Carpenter (mail):
Thanks, especially to Jim, for the comments so far. Tone is always a tough call and it's nice to hear others' perspectives, especially when you write with a certain amount of frustration.
8.19.2006 12:48pm