Thursday, December 05, 2002

Not much blogging today. (Though I did post another comment over at Nathan Newman's ongoing discussion about progressive politics and judicial review).

Mostly playing in the nice snow.

And writing a brief, on a topic that is worth a little post here for those interested in law. First, if you're interested, read the Supreme Court's decision in Village of Willowbrook v. Olech (2000), which -- to my eye, and I think to the eye of nearly every reasonable observer -- holds that you can have a successful equal protection claim even without proof that the government actor who treated you arbitrarily, was doing so for identifiable subjective bad reasons. Then read cases from the Seventh Circuit, which seem to me to be overtly violating this holding, continuing (by what I consider to be a very strained reading of Olech) to require the proof of impermissible motive that the Supreme Court clearly (at least to my eye, and the eyes of scholarly commentators) said wasn't required. (E.g., Hilton v. Wheeling). Maybe Howard Bashman can explain how this fits into his theory that nearly every case at the appellate level has a rather clear answer that doesn't depend on the politics and leanings of the appellate judge? Even if you don't think, as I do, that the Seventh Circuit is quite obviously violating the holding of the U.S. Supreme Court, at the very least you've got a question where many many reasonable people could disagree with the Seventh Circuit, on an important question as to the nature of our relationship to our government -- and a question on which judges of some "leanings" would be more likely to agree with me, and some less so.

posted by sam 11:26 AM 0 comments

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