mcsnee

Scalia is an amazing writer-- he's just a douche bag. Kozinski, on the other hand is an amazing writer AND isn't filled with vinegar water.

If I had to do it over again (and I clerked for a great judge and an amazing Justice on the local Supreme Court) I'd clerk for Kozinski. He seems to be made of win.

Yeah--we haven't had any Kozinski cases assigned yet, though I have no doubt I'll run across one or two in my time here, though he did come up in class.

It's a shame that he'll be remembered only for this porn flap, which is such bullshit.

I don't think so.He's still around and he's one of the best minds in jurisprudence. He writes mostly with an unbiased eye to policy and enthusiastically embraces common sense. I think that people who're versed in the law certainly know him for more than an attention drawing case... but so goes jurisprudence y'know?

Oh, I agree that within the lawyerly world he'll be remembered for his work, but to the extent that the common guy on the street has heard of him, he's "that judge in the porn case." I mean, I'd like to think that I'm relatively well-versed in the legal world for somebody who's still for all intents and purposes a layperson, and that's how I knew of him until I started poking around.

I can't help but love reading that scamp, Scalia, too!

I've always enjoyed Scalia, personally, because it seems that he and I share the same "logical language." By "logical language," I am trying to refer to the way we reason and conceptualize issues; I think you'll eventually discover, if you haven't already, that differences of opinion in legal reasoning often come down to fundamental differences in how the issues are conceptualized and what "correct" reasoning looks like. So—it's always a pleasure for me to read Scalia, because I really understand where he's coming from and what he's trying to say, in a way that I don't necessarily follow O'Connor or Kennedy.

But you have to be careful with Scalia, because he's really a sophist. He has wrecked the caselaw with these mincing distinctions that have allowed him both to observe stare decisis while allowing him to reach his desired substantive results. They seem perfectly reasonable when you read them, but on further reflection, the distinction really falls apart.

One good example is Riegel v. Medtronic, I believe. That's a recent case which said that you can't bring common-law product liability claims against manufacturers of medical devices that had undergone federal safety review. In order to reach this result, Scalia had to distinguish a case where the Court held that you can sue manufacturers of medical devices where the devices had undergone a different approval procedure which required only that a device was substantially similar to another device that had undergone federal safety review. Scalia drew the distinction: the latter was about similarity, the other was about safety. It made sense to allow tort claims where a device hadn't itself undergone rigorous safety review, because then tort law could help fill in the safety gaps, so to speak, whereas devices that had undergone safety review should be as safe as they should be, etc. It's a sensible distinction, on its face.

The problem is that it seems a bit odd to describe the similarity-review approval process as not primarily oriented towards safety. If the FDA isn't assessing the safety of medical devices through the abbreviated similarity-review procedure, then what the hell is it doing? And why does it make sense to say that devices which had undergone safety review shouldn't be subjected to 50 different state-law requirements but that devices that were merely approved based upon their similarity to other devices should be?

Do you see what I mean? Scalia made a similar distinction in Employment Div. v. Smith, which set the baseline standard for free exercise jurisprudence since. The basic holding of that case was that facially neutral laws of general applicability could constitutionally burden religious practices so long as the suppression of religious expression wasn't the purpose of the law (I'm paraphrasing a bit; Scalia wouldn't refer to "purpose"). Again, in order to reach that result, Scalia had to distinguish a bunch of cases where facially neutral laws of general applicability were deemed unconstitutional because they burdened religious practices. In order to do so, he introduced this concept of "hybrid rights" and limited one line of cases to their facts, essentially eviscerating the prior caselaw BUT keeping it technically in effect. To my knowledge, no one has ever attempted to rely on the "hybrid rights" language and succeeded. He basically overruled a line of cases without saying so.

By the way, this is all from the jurist who is also responsible for the closest thing we have to a doctrine of stare decisis. I forget where he did this, but at some point Scalia (I think) set forth a number of factors to consider when deciding whether a prior holding should be overruled. It's a tremendously useful test, I think, and it poses an interesting theoretical question about the power of the Supreme Court. But it's also interesting in that Scalia follows the letter of the test but not the spirit; he respects prior decisions but is more than ready to undermine them as he deems necessary.