[EL] Truth to power?

[Jeff Hauser]

An *excellent** law review article published on the topic of non-party
factual development in appellate courts and how that process is at odds
with an ostensibly adversarial system:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1805703  ( Duke Law
Journal, Vol. 61, No. 1, 2011 )

* Bias alert -- written by my fiancee. :)

On Wed, Feb 22, 2012 at 8:53 AM, <BZall at aol.com> wrote:

> **
> [nods] Indeed. The litigator's eternal dilemma. And in response, a
> merciful Lady Justice, having peeped under her blindfold to see the anguish
> of those proposing issue resolution not tied to "obvious" facts, grimaced,
> raised her right hand, with her sword *en sixte*, and flicked it upward,
> drawing forth what we all know today as . . . Rule 12(b)(1). Inculcated
> in generations of DoJ padawan learners in the creche, surrounded by the
> ghosts of Swierkiewicz and his eternal enemy Sorema N.A., sonorously
> chanting "12(b)(1), . . . 12(b)(1) . . . 12(b)(1)," the cadaverous DoJedi
> Masters lean in to fiercely hiss "END this!" (And I speak as one who
> has stood at the podium as Justice Scalia (one of MY votes!) turns to his
> colleagues and says: "he wants to be here, but I don't think he has a right
> to be here.")
>
> Still, . . . a real teachable moment here, and I'm not referring to the
> also-correct issue of facial challenges requiring an explanation for every
> constitutional use. Examine for a moment the purpose and
> undoubtedly-unintended effect of the rule requiring a factual basis in the
> context of the Montana concurrence. The facts in Western Tradition as laid
> out relate to corporations, as does the Montana Supreme Court challenge to
> Citizens United. Indeed, that was the constant attack on CU at the
> beginning, a reprise of Austin's anti-distortion rationale just struck
> down. And that is unquestionably what JBG means.
>
> Yet, as today's front page story in the Washington Post demonstrates, the
> "huge money" is not coming from corporations. The corporate funding
> "unleashed" by CU amounts to only 23% of superPAC funding.
> <http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-are-the-power-players-in-the-gop-primary/2012/02/21/gIQAPU3BSR_story.html?hpid=z1>
> *
> http://www.washingtonpost.com/politics/corporations-are-sending-more-contributions-to-super-pacs/2012/02/02/gIQAL4dYlQ_story.html
>  *
> Most of the "huge" money is coming from individuals.
> http://www.washingtonpost.com/politics/super-pac-donors-revealed-who-are-the-power-players-in-the-gop-primary/2012/02/21/gIQAPU3BSR_story.html?hpid=z1 Sheldon
> Adelson says he feels so strongly he might spend $100 million.
> http://www.forbes.com/sites/stevenbertoni/2012/02/21/billionaire-sheldon-adelson-says-he-might-give-100m-to-newt-gingrich-or-other-republican/ And,
> as has been discussed here, those individuals were free to spend before CU.
>
> So let's take JBG at her words:
>
> Montana’s experience, and experience elsewhere since this Court’s decision
> in Citizens United v. Federal Election Comm’n, 558 U. S. ___ (2010), make
> it exceedingly difficult to maintain that independent expenditures by
> corporations “do not give rise to corruption or the appearance of
> corruption.” Id., at ___ (slip op., at 42). A petition for certiorari will
> give the Court an opportunity to consider whether, in light of the huge
> sums currently deployed to buy candidates’ allegiance, Citizens United
> should continue to hold sway.
>
> Lady Justice's wisdom in requiring facts to illuminate the real issues
> presented may be a dilemma, but it is probably one that betters
> Justice. Justices Ginsburg and Breyer believe that the "huge sums" are
> "deployed" "by corporations" when they are actually given by individuals. I
> believe that it is wrong to claim that CU "held" that corporations are
> people. Whatever your position on that, two Justices have now endorsed the
> concept in reverse. They are not saying that corporations are people; they
> are saying that people are corporations.
>
>
>
>
> Barnaby Zall
> Of Counsel
> Weinberg, Jacobs & Tolani, LLP
> Please note our new address:
> 10411 Motor City Dr., Suite 500
> Bethesda, MD 20817
> 301-231-6943 (direct dial)
> www.wjlaw.com <http://www.wj/>
> bzall at aol.com
>
>
>
>
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>
>  In a message dated 2/21/2012 6:59:51 P.M. Eastern Standard Time,
> jbirkenstock at capdale.com writes:
>
>  True enough Barnaby, good point.  I had the impression that DOJ would
> have much preferred the Court to similarly require a factual record
> suitable to a facial challenge to 441b, once the Court un-stipulated that
> issue in *CU* itself, but I also think I see the reasoning behind idea
> that the Supreme Court isn’t precluded from revisiting an issue “passed
> upon” by a lower court if the Supremes feel that issue is the one that
> should properly decide the case.  ****
>
> ** **
>
> But that said, I just think that state of affairs poses an excruciating
> problem for government lawyers – do they have to develop (and convince a
> district court judge to allow them to develop) a factual record sufficient
> to answer every conceivable constitutional argument in every case, even
> where the defendant/other litigant is willing to stipulate those issues
> away?  Just seems like they’re damned if they do and damned if they don’t.
> ****
>
> ** **
>
> ** **
>
>
>
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