Anyone who knows what legal analysis and legal argument look like — anyone who knows the requisites of legal reasoning — must look on the handiwork of Judge Anna Diggs Taylor in the NSA case in amazement. It is a pathetic piece of work. If it had been submitted by a student in my second year legal writing class at the University of St. Thomas Law School, it would have earned a failing grade.
What’s even more entertaining is that the New York Times editorial board called this universally panned ruling “a careful, thoroughly grounded opinion” that “eviscerated” the administration’s arguments. Heh. I guess the Times editorialists would fail legal writing, too. Not that I’m surprised.
Orin Kerr ask a good question about FISA and injunctive relief:
“In his comment at Balkinization about Judge Taylor’s NSA surveillance opinion, Laurence Tribe writes:
‘Had I been in [Judge Taylor’s] place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA.’
“This raises a question I’ve been wondering about: Does FISA permit injunctive relief? Maybe this question is completely and utterly obvious to civil litigation types out there, and I’m just missing the obvious because I’m a criminal law persion. If so, I’ll just tuck my tail between my legs and scamper off. But I began to wonder about this when I was looking at FISA’s civil remedies provision, 50 U.S.C. 1810, which states:
‘An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recoverâ€â€?
a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
b) punitive damages; and
c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.’
“As a matter of text, injunctive relief is not included, unlike the analogous provisions of the Wiretap Act (which states explicitly that a court can provide “such preliminary and other equitable or declaratory relief as may be appropriate” in a Wiretap Act civil suit). I guess the civ pro/fed courts question is, does the existence of a damages remedy automatically give judges the authority to provide injunctive relief in appropriate cases as well? Thanks for any guidance you might have.
“(Incidentally, I found cases indicating that injunctive relief is disfavored in cases with national security or foreign affairs implications, but the issue here is more about whether injunctive relief is permitted rather than whether it is favored or disfavored.)”
Sean, criticizing a judge for a poorly reasoned opinion, and contending that the opinion is basically worthless because poorly reasoned District Court opinions have absolutely no precedential weight, and therefore basically the judge’s opinion means nothing and will have no practical impact on the final resolution of this legal question, is NOT a logical fallacy.
It would be a logical fallacy to contend that because this opinion sucks, therefore its legal conclusions are necessarily wrong. But no one here is saying that. Indeed, many of the critics of this opinion agree with its conclusion. I am presently agnostic on the rightness or wrongness of the conclusion. But that’s not the issue here.
It would be a logical fallacy to contend that because this opinion sucks, therefore its legal conclusions are necessarily wrong.
It would be easy to draw the inference that you are actually making that link, given how hard you’re blog-raging on the decision, though. The perception might be enhanced because of your continued move to the right.
I’ve seen Brendan separate his critique of the opinion from its ultimate conclusion on more than one occasion.
On a completely different note: last night saw the Yanks take their 4th game in a row from the Red Sux in 3 days, with the last game of the series to come this afternoon in what could be a Yankees sweep and a replay of the 1978 “Boston Massacre!”
“Laurence Tribe is unhappy with those in the legal community who think the NSA intercept program is illegal, but who are critical of the decision by Judge Taylor declaring the program so. While Tribe ‘can’t imagine’ having written an opinion that, like Judge Taylor’s, does not address the 2002 decision by the FSIA Court of Review, Tribe decries those who ‘act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.’
“Tribe scolds that ‘it’s not costless to harp on the details of a basically correct legal denunciation of [the NSA] program to the point of ridiculing the motives and capacities of the judge delivering the blow.’ (Here, Tribe is being sloppy — harping on the details of an opinion cannot involve ridiculing the author’s motives). In fact, it is Tribe who elects to talk about motives. He implies that those who ‘harp’ on the details of the opinion (or, if Tribe were to state the grievance honestly, those who harp on the fact that the opinoin is largely devoid of legal analysis) are ‘underscor[ing] [their] own professional credentials and. . .cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation’s chief executive has been guilty of a shamelessly unlawful power grab.’
“Ann Althouse responds to Tribe’s call for self-censorship by the liberal professoriate with these questions:
‘Are you saying that ordinary people who don’t read law reviews and who are trying to understand current events shouldn’t have the benefit of law professors helping them understand an important new case, that we’re distracting them from their proper job of despising the President? You want people to concentrate on the judge’s conclusion and not to question the judge’s reasoning and analysis? To do that is to bow to authority. If that’s what people ought to do, what happens to the foundation for criticizing the President? The President has concluded that he has the power to do what he’s doing. Why shouldn’t people accept that ‘important conclusion’ and leave it for the experts to hash out the details in law review articles?’
Both, perhaps. In a strict reading, I should take into account his repeated qualifications. But just like the MSM is perceived to commit the sin of bias via errors of omission or misplaced emphasis, one might say that Brendan’s repeated emphasis on how bad it is indicates a deeper disapproval than the form of the argument. His post titles thus far:
Sure, a pattern of opinion for the opinion. Read those headlines again. First one is neutral, and the following two are specifically directed towards the opinion itself.
And lefty blogs are using the same kind of vernacular to describe the opinion. Even those who agree with the actual decision. But like has been pointed out in news stories and otherwise. It is equally possible to agree with the ruling, but hold contempt for the opinion.
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August 20th, 2006 at 5:54:07 pm
By the way, the judge is a Bush 1 appointee, so that could explain the poor quality of writing and reasoning
:-)
August 20th, 2006 at 6:32:22 pm
A Nun Mouse:
You’re wrong. She was appointed by Pres. Carter in Nov. 1979.
August 20th, 2006 at 6:32:29 pm
Huh?
August 20th, 2006 at 6:33:43 pm
gahrie -
You fool! You’ve fallen into Nun’s trap!
August 21st, 2006 at 1:00:35 am
Yup - ya got suckered by the wimpleton !
August 21st, 2006 at 8:33:31 am
Are we all aware of the logical fallacy called Appeal to Style?
August 21st, 2006 at 9:48:24 am
Orin Kerr ask a good question about FISA and injunctive relief:
“In his comment at Balkinization about Judge Taylor’s NSA surveillance opinion, Laurence Tribe writes:
‘Had I been in [Judge Taylor’s] place, I never would have reached the difficult First and Fourth Amendment issues that she disposed of so summarily when a powerful, and indeed all but impregnable, statutory path to decision at least appeared to be available under the FISA.’
“This raises a question I’ve been wondering about: Does FISA permit injunctive relief? Maybe this question is completely and utterly obvious to civil litigation types out there, and I’m just missing the obvious because I’m a criminal law persion. If so, I’ll just tuck my tail between my legs and scamper off. But I began to wonder about this when I was looking at FISA’s civil remedies provision, 50 U.S.C. 1810, which states:
‘An aggrieved person, other than a foreign power or an agent of a foreign power, as defined in section 1801 (a) or (b)(1)(A) of this title, respectively, who has been subjected to an electronic surveillance or about whom information obtained by electronic surveillance of such person has been disclosed or used in violation of section 1809 of this title shall have a cause of action against any person who committed such violation and shall be entitled to recoverâ€â€?
a) actual damages, but not less than liquidated damages of $1,000 or $100 per day for each day of violation, whichever is greater;
b) punitive damages; and
c) reasonable attorney’s fees and other investigation and litigation costs reasonably incurred.’
“As a matter of text, injunctive relief is not included, unlike the analogous provisions of the Wiretap Act (which states explicitly that a court can provide “such preliminary and other equitable or declaratory relief as may be appropriate” in a Wiretap Act civil suit). I guess the civ pro/fed courts question is, does the existence of a damages remedy automatically give judges the authority to provide injunctive relief in appropriate cases as well? Thanks for any guidance you might have.
“(Incidentally, I found cases indicating that injunctive relief is disfavored in cases with national security or foreign affairs implications, but the issue here is more about whether injunctive relief is permitted rather than whether it is favored or disfavored.)”
http://www.volokh.com/archives/archive_2006_08_20-2006_08_26.shtml#1156128315
August 21st, 2006 at 10:12:13 am
Sean, criticizing a judge for a poorly reasoned opinion, and contending that the opinion is basically worthless because poorly reasoned District Court opinions have absolutely no precedential weight, and therefore basically the judge’s opinion means nothing and will have no practical impact on the final resolution of this legal question, is NOT a logical fallacy.
It would be a logical fallacy to contend that because this opinion sucks, therefore its legal conclusions are necessarily wrong. But no one here is saying that. Indeed, many of the critics of this opinion agree with its conclusion. I am presently agnostic on the rightness or wrongness of the conclusion. But that’s not the issue here.
August 21st, 2006 at 11:10:33 am
It would be a logical fallacy to contend that because this opinion sucks, therefore its legal conclusions are necessarily wrong.
It would be easy to draw the inference that you are actually making that link, given how hard you’re blog-raging on the decision, though. The perception might be enhanced because of your continued move to the right.
August 21st, 2006 at 11:31:15 am
I’ve seen Brendan separate his critique of the opinion from its ultimate conclusion on more than one occasion.
On a completely different note: last night saw the Yanks take their 4th game in a row from the Red Sux in 3 days, with the last game of the series to come this afternoon in what could be a Yankees sweep and a replay of the 1978 “Boston Massacre!”
WOOHOO!
August 21st, 2006 at 11:44:33 am
I’ve also seen his repeated qualification as such. Doesn’t change the general perception that he disapproves of the decision in general.
August 21st, 2006 at 11:59:56 am
Well is that Brendan’s fault, or the fault of those who dismiss his repeated qualifications?
August 21st, 2006 at 1:16:45 pm
“Laurence Tribe is unhappy with those in the legal community who think the NSA intercept program is illegal, but who are critical of the decision by Judge Taylor declaring the program so. While Tribe ‘can’t imagine’ having written an opinion that, like Judge Taylor’s, does not address the 2002 decision by the FSIA Court of Review, Tribe decries those who ‘act as though making an argument water-tight is more important than steering the legal boat in the right direction, much less reaching the correct shore.’
“Tribe scolds that ‘it’s not costless to harp on the details of a basically correct legal denunciation of [the NSA] program to the point of ridiculing the motives and capacities of the judge delivering the blow.’ (Here, Tribe is being sloppy — harping on the details of an opinion cannot involve ridiculing the author’s motives). In fact, it is Tribe who elects to talk about motives. He implies that those who ‘harp’ on the details of the opinion (or, if Tribe were to state the grievance honestly, those who harp on the fact that the opinoin is largely devoid of legal analysis) are ‘underscor[ing] [their] own professional credentials and. . .cleverness and even-handedness and fair-mindedness at the expense of distracting the general public from the far more important conclusion that the nation’s chief executive has been guilty of a shamelessly unlawful power grab.’
“Ann Althouse responds to Tribe’s call for self-censorship by the liberal professoriate with these questions:
‘Are you saying that ordinary people who don’t read law reviews and who are trying to understand current events shouldn’t have the benefit of law professors helping them understand an important new case, that we’re distracting them from their proper job of despising the President? You want people to concentrate on the judge’s conclusion and not to question the judge’s reasoning and analysis? To do that is to bow to authority. If that’s what people ought to do, what happens to the foundation for criticizing the President? The President has concluded that he has the power to do what he’s doing. Why shouldn’t people accept that ‘important conclusion’ and leave it for the experts to hash out the details in law review articles?’
http://powerlineblog.com/archives/015061.php
August 21st, 2006 at 1:41:19 pm
Both, perhaps. In a strict reading, I should take into account his repeated qualifications. But just like the MSM is perceived to commit the sin of bias via errors of omission or misplaced emphasis, one might say that Brendan’s repeated emphasis on how bad it is indicates a deeper disapproval than the form of the argument. His post titles thus far:
“Volokh conspirators skeptical of NSA ruling”
“The NSA opinion sucks”
“More criticism for NSA opinion”
OK, so what does Brendan think of warrantless wiretapping? He says he’s not sure, but there seems to be a pattern of opinion thus far.
August 21st, 2006 at 5:09:33 pm
Briandot -
Sure, a pattern of opinion for the opinion. Read those headlines again. First one is neutral, and the following two are specifically directed towards the opinion itself.
And lefty blogs are using the same kind of vernacular to describe the opinion. Even those who agree with the actual decision. But like has been pointed out in news stories and otherwise. It is equally possible to agree with the ruling, but hold contempt for the opinion.