Prof Lowenstein is conflating my point defending partisanship on this forum
with my critique of the legal academy re Bush v. Gore. While it is true
that Democratic law profs universally condmened Bush v. Gore, very
frequently their critiques avoided anything vaguely reflecting, and forgive
the pun, realpolitik. Instead, much analysis sought to take the text of the
decision seriously and show how it fit into their longerstanding
critiques -- e.g., of the Court's views of democracy, the Court's
accumulation of power for the Court (ala Boerne), etc....
Why was such analysis irrelevant and besides the point? Because when
justiciability fetishists ignore the fact that, for instance, the plaintiff
lacked the requisite standing (under absurd doctrine this Court has largely
manufactured out of whole cloth) to bring the claim on which the plurality
rested... the reality is that the decision is only intelligible as a
political action. The fact that realist analysis of the Court is often
overly blunt and unsophisticated blinded many analysts to the fact that this
was a case in which nothing other than politics mattered.
And, to tie my points together, attempted distancing of law from politics
seems a likely motivating force for this analysis.
-----Original Message-----
From: owner-election-law_gl@majordomo.lls.edu
[mailto:owner-election-law_gl@majordomo.lls.edu]On Behalf Of Lowenstein,
Daniel
Sent: Friday, August 27, 2004 3:37 PM
To: election-law@majordomo.lls.edu
Subject: Bush on 527s
Jeff Hauser writes: "My basic point -- not only do too few law professors
engage in an effort to understand the politics that shapes law, their
reluctance to be seen as partisan compells them to misguided analysis. I
think the fact (well, it's an opinion, I guess, and this would require me to
write a law review article to establish, but... I'm pretty confident in this
opinion) that the vast bulk of academic response to Bush v. Gore was
dreadfully besides the point illustrates this broader problem."
It may well be true that the vast bulk of (legal) academic response to Bush
v. Gore was beside the point, but the reason certainly was not insufficient
partisanship on the part of legal academics. You can probably count on the
fingers of one hand the law professors whose opinions during that
controversy ever deviated from the party line of their choice.
ΚΚΚΚΚΚΚΚΚΚΚ Best,
ΚΚΚΚΚΚΚΚΚΚΚ Daniel Lowenstein
ΚΚΚΚΚΚΚΚΚΚΚ UCLA Law School
ΚΚΚΚΚΚΚΚΚΚΚ 405 Hilgard
ΚΚΚΚΚΚΚΚΚΚΚ Los Angeles, California 90095-1476
ΚΚΚΚΚΚΚΚΚΚΚ 310-825-5148