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The New York Times editorial board should be reminded that poisoning the well is intellectually lazy and does nothing to advance public discourse. Writing on the Supreme Court’s recent decision striking down Arizona’s campaign finance law, the Times managed to spend 500+ words criticizing it without a single bona fide legal argument. Reading the editorial, I would barely know what the Court’s reasoning actually was.

After briefly explaining how the legislation works, the editorial states: “Chief Justice Roberts found that this mechanism ‘imposes a substantial burden’ on the free speech rights of candidates and independent groups because it penalized them when their spending triggered additional money for a candidate who opted into the public program.” That’s all the legal analysis we get. The Times continues, “[t]he court turns the First Amendment on its head.” Why? Because it doesn’t like the result and, by the way, conservative judges don’t care about clean elections.
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Standard of Review Anyone?

It appears that many people think that an appellate court reviews each appeal in the same way a trial court does, e.g., by looking at the evidence – perhaps people think that witnesses come back and testify again. I do not claim to be an expert on the public’s general knowledge (and belief) regarding appellate courts. Disclaimer, I most likely did not understand appellate review prior to attending law school and there remain many things I still don’t know about appellate review and standards of review on appeal.

Standard of review matters, a lot. How much you ask? Well standard of review determines cases. As a recent post on Above the Law – a, mostly, funny legal blog – asserted in one of its few serious pieces:

After a relatively short time on an appellate bench, a judge’s brain becomes hard-wired to examine standards of review. For federal appellate judges, that means that, if the standard of review is de novo, the court should think hard about the trial court opinion and reverse if the result seems wrong. If the standard of review is for clear error, then the judge knows that the appellate court should probably affirm. If the standard of review is for abuse of discretion, then you don’t really have to bother reading the briefs. Just get out the “affirmed in an unpublished memorandum disposition” stamp, and move on to the next case.

Now, many of you likely will not know what the jargon-ey standards discussed above mean but suffice it to say: standard of review matters, and determines cases.

Just like every other piece I have seen on Dukes v. Wal-Mart, this New York Times piece, while interesting (especially where it suggests alternatives to a 1.5 million person class), completely fails to properly educate to the readers to the role of the appellate courts in the United States (and the Supreme Court in particular). Although it would be difficult to provide context in this short editorial, perhaps at some point someone in some news source could at least mention that class certification is subject to a certain kind of review – and it isn’t de novo but rather abuse of discretion. This means that the trial court has significant discretion in determining whether a prospective class is certifiable. The appeals court (Supreme Court included) does not get to displace the trial court’s determination with its own. My review of the comments suggests that the commenters are clearly are not aware of the standard of review and the significant impact it has.

This is significant in two ways regarding Dukes v. Wal-Mart:

1. It will be very difficult for Wal-Mart to win on appeal because of this significant burden on the appealing party.

2. It is unclear that if the Supreme Court upholds class certification for the plaintiffs in Dukes that this will materially change any law or set any precedent (I do recognize that this may be highly relevant for the plaintiffs and in plaintiffs’ lawyers). All that an affirmation will show is that these plaintiffs and these facts are not so outside the trial court’s discretion and that it was o.k. for it for certify this class. This does not mean that each and every time an employee sues his or her employer the employees of that employer are certifiable as a class (although affirming the trial court’s class certification likely means that the raw size of the plaintiff class is not de facto a reason to overturn certification).

Has anyone seen an article discussing the standard of review in Dukes v. Wal-Mart – or any other case?

Does anyone think that this case could have a more meaningful impact on existing law than I outline above?

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After the recent Japanese tsunami and the nuclear situation, The New York Times posted one of their “Room for Debate” columns discussing the relative safety of U.S. nuclear power-generating stations. Now, full disclosure – I have not read each and every debater nor have I read each and every comment. Nevertheless, I see the following general themes in the comments:

1. Haha, we were right about nuclear energy and we shouldn’t build any more reactors.

and

2. This is a shame but let’s be realistic and try to actually determine the relative strengths and weaknesses of building additional nuclear generating stations versus building other power generating capabilities.

As an initial matter, I want to express my complete disdain for the intellectual dishonesty and idiocy of these “Room for Debate” series; it isn’t journalism and instead tends to attract the most incessantly pedantic and idiotic comments and naysayers to each “debate.” It is also incredibly sensationalist and attempts to exploit every individual’s worst fears and insecurities to foster The Times’s readership. Now, of course, everyone does this, but at some point you have to criticize a news source that holds itself out as doing more.

But I digress; lets talk about the two general types of comments, noted above. The second is the rational, thoughtful, introspective, economist-type who seeks information prior to making important decisions. The first is everyone else in the real world. They are NIMBY (not in my backyard) types: reactionary and generally unthoughtful. Sometimes progressive, sometimes regressive, sometimes neither. They are the voters and, if we are honest with ourselves, they are each of us. I am economic and thoughtful about nuclear power, but I know that I am far less so about other things; for example, I have a significant fear of people with Mohawks.

What are you rational about? Irrational about? What do you react to thoughtlessly and without analysis? Without bias?

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The Obama administration’s awkward response to the crisis in Egypt is understandable in light of the United States’s complex relationship with Mubarak and the uncertainty of who will emerge with the reins of power. I also appreciate that there is a lot more to what’s happening than what comes through the American press.

Yet, one can’t help but notice the lack of ideology in Obama’s and the liberal establishment’s rhetoric regarding the protests and the possibility of revolution. As Leon Wieseltier put it, in a New Republic article last week, “the Obama administration, and American liberals more generally, have been caught intellectually unprepared for this crisis.” And they know it. In drawing such a sharp contrast between his approach to foreign intervention and Bush’s, Obama left little room to support the Egyptian democratization. Supporting democracy abroad sounded too much like imposing it and two long wars made that sound like a bad idea. Now we find ourselves on the verge of a democratic revolution in Egypt, stripped of the intellectual and ideological tools we may have used to embrace it.

Obama replaced the freedom agenda with an acceptance agenda. His foreign policy has been conducted in a vigorously multicultural spirit. He rightly sensed that an emphasis upon democratization was a critical emphasis—a castigation of the existing dispensations in countries ruled by autocracies and authoritarianisms, and he did not come to castigate. He came in friendship, to “restore America’s standing.” . . . In accordance with his warm new priorities, democracy was the fourth of Obama’s five themes is his speech in Cairo in 2009, the one called “A New Beginning.” When he finally got around to it, he introduced it this way: “I know there has been controversy about the promotion of democracy in recent years, and much of this controversy is connected to the war in Iraq. So let me be clear: no system of government can or should be imposed by one nation by any other.” Or: the United States will no longer bother you about how you are living. He then proceeded to a fine little sermon about the virtues of government “through consent, not coercion,” but said nothing about the political conditions in Egypt. The Cairo speech did not discomfit the Mubarak regime. I imagine that many of Obama’s listeners in Cairo that day are on the streets of Cairo today, and some of them attacked the American Embassy.

It was a terrible mistake for Obama to make democratization seem like an “imposition,” with its imperialist implications, and to conflate it with military invasion. The promotion of democracy is a policy of support for indigenous Egyptian, or Arab, or Muslim democrats who are just as authentic as indigenous Egyptian, or Arab, or Muslim autocrats and theocrats, and certainly more deserving of American respect. It is a policy—to borrow Gibbs’s words—of taking sides—specifically, of taking sides with peoples against regimes. It does not create dissidents, in some sort of ugly-American conspiracy; it finds them, and then it assists them, because they are in need of assistance, and because assisting them expresses our values and our interests. To be sure, there are instances in which our interests and our values may collide, because anti-democratic and anti-American forces may come to power by means of a democratic process; but there is no surer way to bring them to power than to ignore the illegitimacy of a tyrannical government and the ordinary grievances of a repressed population.

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