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« That book meme | Main | "Survivor" and diversity »

August 23, 2006



Nice blog. Just stumbled on to it from the recently updated blogs list. I have a feeling that the racially divided teams will in the end lead to alliances that cross racial borders to show that this is a wonderful world. It will be interesting to see what happens while the tribes are fully divided. Will the Asians win all the mental challenges?

Ronald X. Groeber, Ball State Univ

The reasoning always matters, the decision is legitimated by the reasoning. The writing must communicate clearly that this was a rational decision supported by prior cases or the statutory purposes of the law. The public has a right to be reassured that we are a nation of laws.

A. Rickey

If this is the best attack anyone ever makes against you, you're storted.

Actually, I was always for Wechsler in the debate on Brown that you mention, because he's right about the decision: it's impossible to defend under any kind of "neutral principle," in that you wouldn't abide by its reasoning in a case that would go against you. That's why, years later, you can have an entire book on what Brown should have said.

(Example: Can you really buy "Separate educational facilities are inherently unequal.?" If that's true, then how can one defend Harvey Milk High School?)

Brown solved a real and serious evil. In so doing, however, it also created real and serious problems for jurisprudence. The principles of the decision--and its basis in constitutional law--provide grist for thousands of law review articles trying to reconcile it with other results. Doesn't mean Brown shouldn't have been decided that way, because the evil was extreme, but we could wish that it had been done better.

As for Taylor and "the decision is the only thing that matters" commentators, they can safely be ignored. If one thinks that the outcome is the only important part of a case, one's thinking only as a practitioner and not as an academic (or judge, or steward of government). That point of view ignores the role of precedent. It's pretty silly when academics think without taking in mind the concerns of practitioners, but the opposite is no better.

A wiser defense of Judge Taylor can be found here, but even that ignores the fact that the ruling is weak on legal reasoning even if one accepts that certain facts were not "disputed" by the government.

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