In anticipation of oral argument on May 15 in the universal injunction cases, I’m writing a few posts that offer a guided tour through the main contested points.
Very much appreciate these write-ups! Thanks especially for sharing them publicly and timely, without the usual PDF rigamarole. Make sure you export your data from Substack every once in a while, and back it all up somewhere safe.
Having read Parts 1 through 3 and slept on them, I do spot a potential incongruity, especially visible in this Part 2 on the case for the injunctions. The post begins by emphasizing that the Supremes will consider the question as a general matter, not as presented in the specific conflicts of today. But the post ends on a larger theme of courts as dispute resolvers more than law clarifiers, with a gist that characterization's accurate, should be accurate, and pushes against allowing these kinds of orders.
I see your fondness for the Hart & Weschler description, which you quote extensively in Part 3. But I wonder how useful breaking the courts' work down like that is when it comes to saying what they should do, rather than describing what it is they do to new readers. I don't suppose anyone needs an abstract, an intro, fifty pages, and citations to figure out that deciding cases *based on the law* requires deciding what the law means, by show or tell. Rule of law couples those functions. It's analysis that chooses to see them separately, within a single court or tapered across the trial-appeal divide in the hierarchy.
Perhaps it's a credit to H&W's craft in teaching tools that the vocabulary they offer in their casebook can also be used to organize some of what's going on with this debate, to take it in. But I'd be very careful about turning that description into a theory of where the competing views come from. Pointing out that champions of both partisan camps have faced these injunctions strikes me as import work in guiding the debate in a generally beneficial direction. But that strikes me as very much and inescapably a "what should the law be?" kind of question. The greater point is that it would decide not just these cases now, but more cases later.
Forgive me for commenting before catching up to your latest post on the decisions. I was grateful to see that headline, too.
Very much appreciate these write-ups! Thanks especially for sharing them publicly and timely, without the usual PDF rigamarole. Make sure you export your data from Substack every once in a while, and back it all up somewhere safe.
Having read Parts 1 through 3 and slept on them, I do spot a potential incongruity, especially visible in this Part 2 on the case for the injunctions. The post begins by emphasizing that the Supremes will consider the question as a general matter, not as presented in the specific conflicts of today. But the post ends on a larger theme of courts as dispute resolvers more than law clarifiers, with a gist that characterization's accurate, should be accurate, and pushes against allowing these kinds of orders.
I see your fondness for the Hart & Weschler description, which you quote extensively in Part 3. But I wonder how useful breaking the courts' work down like that is when it comes to saying what they should do, rather than describing what it is they do to new readers. I don't suppose anyone needs an abstract, an intro, fifty pages, and citations to figure out that deciding cases *based on the law* requires deciding what the law means, by show or tell. Rule of law couples those functions. It's analysis that chooses to see them separately, within a single court or tapered across the trial-appeal divide in the hierarchy.
Perhaps it's a credit to H&W's craft in teaching tools that the vocabulary they offer in their casebook can also be used to organize some of what's going on with this debate, to take it in. But I'd be very careful about turning that description into a theory of where the competing views come from. Pointing out that champions of both partisan camps have faced these injunctions strikes me as import work in guiding the debate in a generally beneficial direction. But that strikes me as very much and inescapably a "what should the law be?" kind of question. The greater point is that it would decide not just these cases now, but more cases later.
Forgive me for commenting before catching up to your latest post on the decisions. I was grateful to see that headline, too.