an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
"Great cases like hard cases make bad law. For cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment."
In response to Professor Fishkin, I would note that the relevant question is whether Texas can compel you to buy, not eat, broccoli. And the answer to that, I assume, is yes.
I think Professor Morrison's complaints about Randy Barnett's "alarmism" largely miss the mark. The main problem is that Barnett's alarms will be just as valid (or very nearly so) even if the Court agrees with his constitutional argument in this case.
Well, I think this could make hard case because the issues are skewered by partisan and other matters but it is a "great" law as in importance and scope in various respects and involves major issues, if one I personally think are easily applied in this specific case.
Great cases overshadow decisions issued the day of their argument. The two cases decided today both have quite weird dispositions.
In the Zivtovsky case, it was agreed that political question doctrine issue was surplusage, because the case could not be a political question unless the president's powers also overcame those of Congress; thus the Court of Appeals necessarily decided the inter-branch dispute in favor of the Executive. Although the substance of the inter-branch dispute was fully presented to the Court, it nonetheless refused to decide it.
In the Credit Suisse case, it remanded for consideration of equitable tolling, while leaving in place the Court of Appeals' conclusion that the statue was one of repose rather than limitation and therefore was not subject to equitable tolling. It is clear what the Court wants is for the district court to resolve the plaintiffs' factual dispute in favor of Credit Suisse, but how can the Court of Appeals order that when it has been affirmed in deciding that equitable tolling does not apply?
I think a fair case could be made that this Court frequently does not go far enough in applying its rulings to the case before it to see how practicable they actually are.
Poor Professor Koppelman- I am afraid that he is exhibiting signs of Obamacare Derangement Syndrome. To wit, the following from his Salon piece:
"The fact that so many people (including, I am very sorry to say, some law professors who are friends of mine) have converged around such weak arguments is a specimen of the collective madness that occasionally besets otherwise well-functioning civilizations, like the McCarthy red scare of the 1950s, or the Salem witch trials."
Meanwhile, Zivotofsky v. Clinton was handed down, a partial win for an advocate [Zivotofsky v. Clinton] who's first case involved investigations of communists back in the mid-60s. CJ Roberts did his CJ Marshall impression on what isn't a political question while Justice Sotomayor had an interesting concurrence and Breyer dissented.