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Wednesday, March 15, 2006

sometimes i thank Yale for rejecting me

I don't understand the cult of Jack Balkin. Everyone in the blogosphere seems to be falling over themselves to praise his recent post on the FAIR litigation.

Let me summarize it for you:

1. "Why I joined the litigation":

Obviously responding to arguments that liberal law professors are dishonest and/or out of touch, Balkin says that it's worth it to push pointless half-assed legal arguments when the cause is just, even if they might lead to bad law and bad results in other areas. While so doing, he stresses that he really meant to support an alternative, even more crackpot theory of the case that would allow the Court to overturn Dale and rule for FAIR at the same time.

2. "What the FAIR opinion does":

Balkin sees some silver linings: First, he thinks Roberts has conditioned his opinion on Law Schools remaining breeding grounds of corporate hackery. (Perhaps this is why he thinks bigshot Yale could have won an as-applied challenge). Second, if you squint very hard and tilt your head sideways, you see that FAIR "narrows" Dale, by suggesting that Dale doesn't apply to circumstances that Dale doesn't apply to.

3. "What the FAIR opinion leaves unresolved -- and why the military may not be happy with the result":

Balkin predicts a knock-down drag-out affair over the question of whether Law Schools can really protest against the military recruiters they let on campus. Apparently, if something is so obvious that all eight Justices endorse it without feeling the need to explain themselves, this makes it ripe for litigation.

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