Law school is more interesting if you find line-drawing important than if you don't.
A lot of learning about legal rules is learning about where a decisionmaker drew a line, and why. There were some competing values or interests, and a line had to be drawn somewhere: The question is where to draw the line, and if it was drawn in the right place.
To some, this is a really interesting problem. It is about how to address conflicts among competing values. It is about how to operationalize that conflict into legal rules. Super interesting.
To others, it is hopelessly boring. It is technical and small-minded. It doesn't prove which values are true and which are false, but just tries to accommodate them, usually in an off-the-cuff sort of way.
How much you like law school depends a lot on which side of that line you fall.
This is particularly true in class, where professors often try to draw out different views of the problem. They want to get a range of perspectives, and to see where the disagreements are. This can be either awesome or stupid depending on which mindset you have.
If you see line-drawing as interesting, the different views are essential. You need to get the competing values and perspectives out there in the open. You need to hear the expressions of the different values and to see how they might impact where the line should be drawn.
If you see line-drawing as boring, then hearing the different views is silly. You're just hearing classmates mouth off with their opinions, and some of those opinions will be totally wrong. Seems like a waste of your time, or even insulting, to have to hear wrong opinions.
The basic difference, I think, is between seeing law as an accommodator of societal values and a decider of societal values. Law school largely teaches who decides how to accommodate the values and how they do it, not what societal values are right or wrong. /end
I might expand in this in a short essay, for a law student audience. stay tuned.
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If you're a Supreme Court Justice, do you want to get rid of the Texas case without any comment or do you want to say something about this strange creature that has appeared before you?
My own instinct would be to get rid of it without comment, except I would worry that this is rewarding a political strategy you're likely to see again. (If a state AG can file crazy lawsuits for the base, being news story #1, and face no pushback, this will def happen again.)
Although it's fun to ponder the suits that might come in future years if the Court just quietly says no. Will Texas sue Delaware for not criminally prosecuting Hunter Biden for being a Chinese spy? The possibilities are endless.
Still annoyed by my loss in the 1988 high school class President election. Thinking of filing a cert petition.
Or at least setting up a GoFundMe or something, which will go to my personal bank account, or, if I decide to file, help defray my very high legal costs.
BTW, the responses to this so far are brilliant. Well done, everyone.
Everyone wants to start with, okay, who will win? I think the telephonic arguments make that harder to tell than in person arguments. On the phone, it's more structured, so there's less discussion that gives you insights on that.
My sense is that there were only two Justices who seemed clearly disposed to one side: Both Sotomayor and Gorsuch seemed on Van Buren's side. I don't think anyone stood out as clearly on the government's side.
Here's my thread live-tweeting the Van Buren argument on the meaning of the CFAA.
Although C-SPAN is saying it starts at 11 eastern (now), that's wrong: It's not starting for at least 20 minutes, b/c the prior case was scheduled for 80 minutes, not 60 minutes. So stay tuned.
When Van Buren starts, probably in about 25 minutes, it will be available live here. c-span.org/video/?477429-…
For those unaware, Judge Bibas was appointed by Trump and is a longtime Federalist Society member. And he wrote this opinion exactly the way he would have if the plaintiff had represented any other candidate.
Cool 4th Am Q raised by this new op: If a judge reviews a warrant application, and thinks the facts described may violate the 4A, should she apply the 4A, including the exclusionary rule, to decide whether to sign the warrant?
In the ordinary case, an affidavit describing probable cause will state the facts supporting probable cause. If those facts amount to probable cause, the judge will sign the warrant.
If charges follow and the defense moves to suppress, the defense can argue that the fruits of the warrant should be suppressed because of a prior 4th Amendment violation.
The Q in this case is, can the judge make that call at the warrant application stage, too, and not sign?