I was previously a constitutional law and civil rights litigator and am now a journalist. I am the author of three New York Times bestselling books -- "How Would a Patriot Act" (a critique of Bush executive power theories), "Tragic Legacy" (documenting the Bush legacy), and With Liberty and Justice for Some (critiquing America's two-tiered justice system and the collapse of the rule of law for its political and financial elites). My fifth book - No Place to Hide: Edward Snowden, the NSA and the US Surveillance State - will be released on April 29, 2014 by Holt/Metropolitan.

Tuesday, August 22, 2006

Grading the law professors; apologies due Judge Taylor

(updated below)

At the rate things are going, Judge Anna Diggs Taylor is going to be due a serious apology some time soon, if she isn't due one already. It turns out many of the "experts" who were widely cited to support the attacks on Judge Taylor's opinion were actually themselves quite misinformed about the basic matters governing her rulings.

Here, for instance, is a post from Orin Kerr which reflects a deep misunderstanding of the issues which Judge Taylor ruled on. I'm not trying to single him out. To the contrary, he's been commendably candid about his lack of expertise in (I would even say knowledge of) how civil litigation works (a modesty and candor which many lack). Yet despite his self-professed unfamiliarity with civil litigation, he was one of the most widely-quoted law professors by those wanting to disparage the quality of Judge Taylor's opinion, and the result of his lack of relevant knowledge (about both civil litigation rules generally and the events in this case) were some plainly misguided attacks.

In his post, Kerr responds to a point I (and others) have made -- that a principal reason why Judge Taylor was somewhat conclusory in her analysis of some issues, and the reason she repeatedly said that certain propositions were "undisputed," is because the Bush administration either failed or chose not to dispute them. Specifically, the Justice Department was so intent on telling the Judge that she had no right to even rule on these issues (because the NSA program is a "state secret," the legality of which the court cannot adjudicate without damaging national security and/or because the plaintiffs lack "standing"), that it basically chose not to address the merits of the plaintiffs' case at all.

Indeed, as I wrote about here at the time it happened, the DoJ twice tried to convince Judge Taylor not to rule on the substance of the ACLU's claim, but instead to rule first on the DoJ's "state secrets" argument. Twice, the court refused this request, ordering the DoJ to address the merits of the case (this Comment to Kerr's post, documents the case's procedural history). But the DoJ essentially refused to do so, and devoted almost all of its brief (.pdf) to arguing why the court lacked the power to adjudicate these issues, and almost none of its brief to arguing about the issues themselves. As Marty Lederman put it once he read the DoJ's Brief: it "did not quite advance or support in any detail that argument -- or any other merits argument, for that matter."

As this excellent Comment to Kerr's post reflects, the Bush administration's refusal to address the merits of the claims (which is part and parcel of its general contempt for the role of the courts in scrutinizing its conduct) meant that Judge Taylor was not only entitled, but was required by the Rules of Civil Procedure (Rule 56), to treat the ACLU's factual claims as undisputed for purposes of deciding the motion.

But plainly, Kerr -- when issuing his widely cited condemnations of the court's ruling -- had no idea (a) that any of this (meaning the case's procedural history) had happened and (b) that on a Motion for Summary Judgment (which is what the ACLU filed and the court decided), the most basic rule is that any fact that one party fails to dispute (with evidence) shall be deemed "undisputed." Thus, in response to the Comment documenting the procedural history, Kerr wrote: "Thanks a TON for the background of the case; this is very helpful, and I hope to have an update or new post up soon about it." And in response to my pointing out the other day that the DoJ's failure to dispute any of these factual assertions compelled the court to treat them as undisputed, Kerr wrote:

Glenn Greenwald suggests that this is correct because the DOJ's failure to address the merits should be seen as a tacit admission that the ACLU's position is correct; this seems quite bizarre to me, as surely the assertion of a legal privilege as to why a question should not be answered does not constitute an admission.

But far from being "bizarre," this proposition -- that facts which a party fails (for whatever reasons) to dispute on Summary Judgment are deemed "undisputed" by the court -- is one of the most basic principles of civil litigation in the federal courts, as any federal court litigator would know. Someone (such as Kerr) who is unaware of those rules might find it "bizarre" that the court repeatedly labelled as "undisputed" facts and propositions which Kerr himself might want to dispute, but given the DoJ's failure to dispute these propositions, the court was required to treat them as such. How can someone who is (a) unfamiliar with the case itself and (b) unfamiliar with the rules governing the key issues before the court be cited as the preeminent expert to opine that the court's opinion is so flawed?

Then we have University of Wisconsin School of Law Professor Ann Althouse, who wrote a post last night citing to Kerr's post and declaring that he "seems to be getting at what happened" in this case. She then points to what she calls "the weird repetition of the strange word 'undisputedly' throughout the opinion" and -- in bolded letters -- she criticizes the court for not even mentioning the DoJ's motion for a "stay" (i.e. its request that the court not rule on the substance of the claims until it decides the DoJ's motion to dismiss on the "state secrets" ground).

But then, in an "Update," Althouse has to correct herself because, apparently, she read the Comment section to Kerr's post and realized that she was just wrong about what happened -- specifically, that the court did previously deny the DoJ's request and ordered the DoJ to address the substance of the plaintiffs' claims. Learning about the procedural history of this case caused Althouse to write:

Arguably, this gave the defendants an opportunity to present evidence to defeat the summary judgment motion, and they chose not to take it.

In other words, Kerr's critique (which Althouse endorsed) of the court's opinion is just wrong -- factually wrong. The court directed the DoJ to address the substance of the claims and the DoJ simply failed and/or refused to do so -- facts which neither Kerr nor Althouse even knew when attacking the court's opinion. And there is nothing "arguable" about it -- if one party moves for Summary Judgment and presents competent evidence supporting its factual claims (as the ACLU indisputably did here), and the other party fails to dispute those facts with competent evidence (as the DoJ indisputably did here), then those facts are "undisputed," by definition.

I seriously doubt based on their commentary that Kerr or Althouse (and most, though not all, of the other law professor critics) have been following this case at all. They don't seem to be aware of some rather critical events which are indispensable in understanding what the court did here -- or, at least, they weren't aware of those events at the time they were attacking Judge Taylor's opinion. What appears to have happened is that they read the opinion on the day it was issued and evaluated it without regard to (or knowledge of) the procedural history of the case, the rules of civil litigation, and the arguments advanced by the DoJ-- i.e., they evaluated it the way a law professor would grade an exam or comment on a law review article, not the way a judicial opinion of this type must be understood (which was part of what Professor Tribe was pointing out the other day).

It is true that there are parts of Judge Taylor's opinion which are surprisingly conclusory, but that does not necessarily make it flawed. It is amazing to watch virtually everyone who is trying to attack her opinion do so by making arguments which the DoJ never made in the case before her. A basic familiarity with this case and with the rules of civil procedure -- both of which many of her critics clearly lacked -- would reveal that Judge Taylor's opinion was infinitely more sound than the conventional wisdom (thanks to many of these law professors) now holds that it was.

Finally, for two critical, under-appreciated points concerning Judge Taylor's decisions, see here.

UPDATE: Add Law Professor Geoffrey Stone, former Dean of the University of Chicago Law School and current constitutional law expert, to the list of admirers of Judge Taylor's opinion. Professor Stone says that he is "confident Judge Taylor reached the right result as a matter of law" (emphasis added; h/t Mona), and that it took "a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security."

It certainly did -- far more courage than almost anyone else has shown (in the Congress, the courts or the media) in the face of the administration's endless exploitation of terrorism to claim virutally unlimited power. It looks as though the little conventional wisdom claim that "All of the High Scholarly Distinguished Priests of Legal Wisdom Agree that this Decision is Undignified and Distasteful" is going to have to be re-written. Some public recanting is in order.

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