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January 09, 2008



Judge Boudin's final paragraph is worth quoting in whole, at least to those who read the district court's opinion:

Holmes' famous aphorism notwithstanding, it is far from clear that hard cases make bad law. Often, the problem in a hard case is a tension between existing law and what the judge feels is the "right" result. Here, doctrine gives the close calls to the army. If a judge disregards that doctrine, it is the judge and not the case that has made bad law. This decision, alas, is such an instance.

I'd thought to myself that Judge Gertner's decision was pretty blatantly crafted to reach the desired outcome, notwithstanding pretty clear and easily-applied controlling legal principles. All in all, I felt like the district court opinion was a pretty disappointing, political effort -- which hurt more because it came from somebody I wished would have been above that.

-- ET!

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