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July 14, 2007



"I wonder if he would feel the same way if his paying clients were told by a court that their gripes, were just not worth of being heard by a court because of who they were."

May I pick a bone? Their gripes were not worthy of being heard because they were and are trivial: "... it is a slow-motion tantrum by children spending their graduate years trying to humiliate the school that conferred on them a costly education from which they evidently derived small benefit. ..."

Not every dispute is worthy of a Federal lawsuit. There are people waiting years for decisions in cases that matter -- some wrongfully incarecerated -- and time is being taken by this? Judge Jacobs is write. I am only sorry he did not quote Justice Musmanno, late of the PA Supremes.


I am not saying that some disputes are more important than others, but every constitutional injury is worthy of attention from the courts. (It could be heard by state courts, too.) However, in the context of habeas, I have never heard of a judge issuing a writ without first hearing argument from the state. But, if the government will defend that kind of argument (which it hasn’t) they would have to be willing to see the jails opened because “in this judge’s opinion, any interest the state has in keeping this person in jail – including a conviction – is stupid, trivial, and a tantrum.”


Thanks for the link!

I think you've badly -- inexcusably, but I hope through inattention rather than deliberation -- misstated my position when you say that my analysis turns on who the plaintiffs were (are). It doesn't. It turns instead on the entirely silly nature of their complaints and the fact pattern out of which they arose, and I defy you to find a line in my posts that says otherwise. I'd feel the exactly the same about a 10-year-old dispute, with actual damages in dispute of $2, and with a purported "chill" on a student newspaper based on a one-week-later, no-result-change (for 39 candidates) re-running of a student government election, had it taken place at a community college in Hawaii or the American Virgin Islands instead of on Staten Island, and the same way if the students were hard-core fascists or Islamic militants instead of recycled hippies from my own era.

Where we substantively disagree though, is with your statement that "every constitutional injury is worthy of attention from the courts." Even if the majority opinion were right -- and I think it's badly wrong -- in holding that there has been a constitutional injury here, its scope is so trivial as to be laughable.

And Chief Judge Jacobs did "hear argument," and presumably also read the record from the lower court, all the appellate briefs, and participated in the post-argument conference. By then, he was sufficiently confident that he knew the nature of the case that nothing in the majority opinion could change his conclusion that it was a trivial tantrum.

This is a case about setting up a claim for state-funded payment of attorneys' fees. If you can't see that now, you're living in more of a fairy-tale world than the worst student government or campus newspaper.

Anyway, thanks again for the link, and the opportunity to comment here. Best regards.


First of all, I don’t think that this case is really about setting up a claim for attorneys fees. Sure, the dissent casts it as that, but the 1988 issue is separate and distinct – and if a party behaves unreasonable in the litigation (even if ultimately victorious) the award of attorneys fees can be adjusted downward. (See e.g. http://appellate.typepad.com/appellate/2007/06/ca1_what_the_fi.html ) These 1983 cases can be very risky fee-wise. Even though I think that all lawyers should be paid for all of their time, I don’t think anyone is going to get rich.) Moreover, prevailing at one stage of the litigation does not guarantee fees.

The difference between the question of “who the plaintiffs are” and the “nature of their dispute” is sort of muddled. If these plaintiffs were not students, they wouldn’t have this dispute. Likewise, if the dispute was different, they wouldn’t be in the same position.

This is sort of like the question in Padilla, where the government asserted (prior to its change in course) that either because of “who the prisoner is” (an American citizen what the government claims are links to a terrorist organization) or “what he is claiming” (that the government doesn’t get to detain him indefinitely in spite of his claims) they win without a trial. I don’t really see the difference. Though arguably, when the person’s citizenship arguably changes substantive law, things might be slightly different, but it still doesn't change the question of whether their arguments should be considered.

I don’t think that the underlying dispute is trivial, simply because it raises issues of constitutional moment. Perhaps the dissent (in part) just did not comprehend why people might care about these things, which points to a failure in our judicial process, in that judges become judges generally by being above these disputes through most of their careers – thereby being unable to comprehend the situations that parties find themselves in. Seriously, (if you want to swap war stories) at least one federal judge has told me something along the lines of “why didn’t the defendant/plaintiff just convince X to do Y?” rather than go outside the normal regime of decision-making. That, I think is naive. Not everyone can speak to university presidents, police chiefs, cops, Senators, presidents, etc. on their level.

Whatever the case, rest assured that if it is possible for similar people to raise similar claims in similar contexts (even if it was the NRA), I think that they are entitled to the court’s fullest attention, and any dissent would have to respond to the majority’s points. All of them. (Unless, of course, a threshold question disposes of all the other questions.)

The dissent does say that he read the opinion below. But, this only makes things more disturbing. If one other judge had joined the dissent, and the dissent didn’t change his mind as to whether to the other judge’s opinion or not, the law would now be based upon nobody having read the dissent, or even caring what the other judge’s think.

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