Patterico's Pontifications


Beldar’s Post, Which I Haven’t Read, Is Wrong

Filed under: Court Decisions,General — DRJ @ 9:29 am

I haven’t read this post by Beldar. But I think he’s wrong. I agree with Eugene Volokh’s post on the topic (which I have read).

I may end up reading Beldar’s post, just because I enjoy reading Beldar. I just thought I should register my disagreement with him now, before I do.

UPDATE: This post is really by Patterico. I mistakenly posted it from DRJ’s account. Yes, that means she has something coming up, so consider that a teaser.

20 Responses to “Beldar’s Post, Which I Haven’t Read, Is Wrong”

  1. I think this topic exposes a divide among the legal profession. Those who believe they are acolytes before the Law, the only thing keeping society from falling to Hobbesian anarchy, will side with Volokh on this. Those who take a more “economics” point of view (ie, legal system is a scarce resource), or acknowledge a value system that sits above or outside of law, will tend to side with Bainbridge.

    Just a quess, but I bet people’s take on this correlates with their opinion on jury nullification – those who think the judge isn’t taking it seriously also think jury nullification is for the most part a bad thing, and those who applaud the judge will think nullification is an important part of a just legal system.

    Legal Sociologist (38ff57)

  2. You are incorrect!

    Kevin (1c20c1)

  3. From a standpoint of how to deal effectively w/narcissists (as this case surely was), the best course is always to ignore and/or shame them. Any form of serious attention, be it good or bad, is still attention and encourages additional acting out on their part.

    The judge essentially said, “Don’t feed the trolls,” a wise comment.

    The real q, IMHO, is whether he was the right one to say it, or whether it ought to have been done long before it reached his level.

    ras (adf382)

  4. Beldar and Bainbridge are right about the Chief’s opinion. Having read the entire majority opinion, the Chief’s dissent shows he takes the issue very seriously. Sometimes lawyers forget that law can’t solve a problem, and in fact, in those instances, can make it worse. it is at times like these that a polite “you’re wrong” won’t do. A slap across the face is what’s necessary.

    Sometimes an overt insult is all the “respect” something or someone deserves. In this case, the litigants and their lawyers need sanctions for wasting the everyone’s time.


    luke pingel (b0a8b8)

  5. I agree with the previous commenters. Beldar thinks the dissenting Judge was being intentionally provocative by claiming he had not read the majority opinion. I think it was the Judge’s way of saying that on rare occasion we lawyers tend to focus on the trees (process) when we should be looking at the forest (substance).

    It’s a fine line and, if we are going to err, I generally agree that the law is better off when lawyers take the process more rather than less seriously. However, there are Monty Python moments when even the participants have to accept the ridiculousness of the debate. I think this Judge had one of those moments.

    DRJ (31d948)

  6. I too disagree with Beldar, whose post I have read carefully. The majority opinion is law, binding precedent in that circuit, and the Chief Judge is supposed to know it. He’s going to have to read it sooner or later. (I’m not sure “rhetorical” is the right word. Could he have been making a thespianic point?)

    In any case, I think it’s judges tweaking each other — kind of like Stevens tweaking Scalia over “originalism” in the case where the wife was allowed to waive the husband’s Fourth Amendment rights.

    nk (9c9223)

  7. Beldar might convince me if I were to read his post.

    After all, it appears that many of you who agree with him have read it.

    Patterico (2a65a5)

  8. I think you’re a clever fellow, Patterico.

    DRJ (31d948)

  9. Hey, what happened to the partial-birth abortion post?

    Christoph (8741c8)

  10. I delayed it for a few minutes.

    Trying to space things out a bit.

    Patterico (2a65a5)

  11. It’s up now.

    Patterico (2a65a5)

  12. Beldar’s answer to Patterico’s question about Husain v. Springer…

    My blogospheric friend Patterico, who was kind enough to link from his blog to my post from yesterday about the Second Circuit’s decision in Husain v. Springer — and in particular about Chief Judge Dennis M. Jacobs’ provocative dissenting opinion i…

    BeldarBlog (72c8fd)

  13. I’m with Pat all the way here.

    The dissenting judge’s statements are obnoxious. There are legal ways to say a case is de minimus (you could use words like, say, “de minimus”) and this looks like an egotistical throwdown.

    The issue’s important. Further, the situation was important to the people who were in it.

    And I’m not a guy who’s against a little humor or snark in legal pleadings – I’ve used it. I still enjoy the reference to sharpening crayons by the Texas judge unhappy with deficient pleadings. But this is wrong. It’s a slap at the system.


    JRM (355c21)

  14. JRM: The Chief Judge’s point is that the system is wrong for permitting this kind of case to go this far.

    You’re entitled to disagree. How anyone but the lawyers hoping to get court-awarded attorneys fees think this was really important, though, I cannot fathom. If a $2 dispute over a 10-year-old student government election whose outcome didn’t change for any of the 39 candidates isn’t important, is there any kind of case that isn’t?

    Beldar (46393d)

  15. Oops.

    39 candidates isn’t important –> 39 candidates is important

    Beldar (46393d)

  16. This layman votes with Beldar. It is long overdue for the Robed Wonders to acquire a grasp on reality, and throw these pos cases out of the courts. The proliferation of cases of this type perfectly matches the decline in public approval of the judicial system.

    Another Drew (8018ee)

  17. I’m not a layman, and I’ve only skimmed Beldar’s post, but I agree with him for this reason.

    The Chief Judge knows the outcome of the case from the conference following the oral argument where each of the three panel judges made their views known and probably indicated how they were going to vote.

    What I read the Chief Judge to be saying is that this case is so out of proportion to the situation, there is no possible legal rationale that could persuade me that the majority view is correct, so why bother taking the time to read and consider it.

    The Judge has had the case briefed by his clerks in advance, and he knows the legal arguments in favor of his view and those against. Whatever the majority panel put on paper is of no consequence to him and his view.

    Its no different than dissenting without writing a dissenting opinion. Rare but not unheard of.

    The Chief’s bottom line was “I voted, I lost, and I’m moving on to something of substance.”

    wls (a15ff1)

  18. A Monty Python moment indeed….another lay vote here for the Beldar position. Another commentator (elsewhere) referred to the Chief Judge’s dissent as being an act of “shaming”–I agree–and I am one of those who thinks we need to shame more people into living in a reasonably civilized society, including our fellow citizens who happen to be judges and lawyers…Nothing cuts like good sarcasm and irony (See: The Pirhanna Brothers sketch)–it’s even worse than having your head nailed to the table. The Chief’s opinion wouldn’t have seen the light of day had he not done a judicial version of the “Village Idiot” sketch. A case of illustrating absurdity by being absurd. I look forward to DRJ’s extended take….

    Driver (faae10)

  19. Is anyone else reminded of the paperboy in Better Off Dead?

    Pablo (99243e)

  20. […] BeldarBlog has published an opus (in blogging terms, anyway – more than 4000 words, including both updates and the title) on this case. I haven’t made my way all the way through it yet, but I’ve read enough to know he generally agrees with Professor Bainbridge’s take. And he’s published a second post (another long one) in response to a comment on the original post left by Patterico. […]

    I Hope this Judge Read the Briefs, at Least . . . | The California Blog of Appeal (f7ae5e)

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