Jeffrey Rosen's Keynote at "Big Business and the Roberts Court":

Jeffrey Rosen delivered the keynote address at the Santa Clara Law Review symposium on "Big Business and the Roberts Court: Explaining the Court's Receptiveness to Business Interests," which is only appropriate as the conference theme was inspired by his NYT magazine article "Supreme Court, Inc."

wolfefan (mail):
Thanks for the various posts, Jonathan. IANAL and so cannot fully follow all of the discussion, but I find the topics and viewpoints interesting and am grateful for your blogging.
1.23.2009 8:12pm

Sorry to interrupt. This seems like rather a big deal.

"The Obama administration fell in line with the Bush administration Thursday when it urged a federal judge to set aside a ruling in a closely watched spy case weighing whether a U.S. president may bypass Congress and establish a program of eavesdropping on Americans without warrants."

"In a filing in San Francisco federal court, President Barack Obama adopted the same position as his predecessor."
1.23.2009 10:09pm
TGGP (mail) (www):
Wouldn't state's rights originalists be opposed to Lochner?
1.23.2009 10:20pm
DavidC (mail):
Suppose a reader previously shared his insights on a particular subject. He eventually realized he knew less than he probably appeared to know about related fields (causing him extreme shock when he uncovered more about certain ones). Very, very, recently, he discovered he hadn't fully appreciated on first read some materials that became available (pretty much quadrupling his shock; which he hasn't even begun to recover from).
He really believed in enlightenment in his heart and now found himself in a very terrible position. His life was like a comedy and a tragedy at the same time.
What should he do? He appreciates any and all advice.
1.23.2009 11:41pm
Randy R. (mail):
Oops. I quickly read this thread, and thought it said that this was publihsed in the Santa Claus Law Review. Which made me think, is there really a law review devoted to the legal ramifications of man coming down an chimney and dispensing free stuff?
1.23.2009 11:42pm
David Warner:
"Hope for a more populist, less business-friendly justice would have to come from a broader change in the national culture, particularly among legal elites."

Perhaps via a Jeffersonian alliance with the limited government-libertarian-originalist forces? I know, but a guy can dream.
1.24.2009 12:53am
devil's advocate (mail):
wow! a lefty legal journalist who actually admits that the vast right wing conspiracy actually has two ideas.

Of course he wouldn't write that in his orginal treatise attacking the VRWC but admits it when the doctrine position is made to look absurd.

So, logically speaking, he is at least on the right track in view the schism as reflected in the Scalia/Epstein debate.

As with his not-so-mea-culpa after conspirators here played no small part in making his analysis of Kelo look pretty ridiculous, trying to reduce this to name calling starting with Lochner typically ignores that there the Lochnerians of the present day are the [neo]liberals, i.e. take a look in the mirror Jeff.

Indeed his very approach in regretting the absence of a Douglas character on the court glosses over the extent to which modern jurisprudence carries a measure of Douglas's and Lochner's finger on the scale as in Roe v. Wade. Blackmun was no populist -- although Douglas did get to write a concurrence in Doe v. Bolton. Now this is not a business case, but there the goose and gander question of whether there actually is a distinction between economic rights and civil rights.

Now Scalia will occasionally try to address that erroneous distinction, e.g. Lucas v. SCCC but is equally likely to be pro-Government on the reach of the police power, e.g. Angel v. Raich, and his affection for the Chevron regime has proven anything but pro-business -- although Rosen's precision in analysis suggests he would put Chevron in the probusiness column because he would confuse the substance with the holding which is extends the highly deferential pro 4th branch outlook of Carolene.

But Rosen, putting off losses of the Chamber wing of the VRWC to occasional ideological conflicts with conservative justices, completely misses the importance of standard of review cases. And given the court's complete unwillingness to enforce anything that looks like the separation of powers, such that we certainly have the non-delegation doctrine in exile, Rosen wouldn't know where to put a case like American Trucking, or the extent to which virtually unlimited delegation compounds the problems of standard of review, whether you are more pro-business or pro-market.

Indeed, this would be the central area of constitutional assault on the bailout and that banner is currently being carried by Dick Armey whose career as a whole somewhat splits the difference between the pro-business and pro-freedom right of center camps. Rosen probably isn't particulary inciteful on the public choice complications of this kind of government intervention where business is essentially required to chose sides hopefully resulting in a sequel Slouching toward Goliath: State-capitalism and American Decline

Rosen tends to strike me as the epitome of Christian Science Monitor journalism -- claim dispassionate nuanced serious and objective coverage and then deliver left leaning self indulgent content with token observations of the a discourse on the right that were just enough to be captured on his intellectual Richter Scale.

1.24.2009 9:59am
anomdebus (mail):
My approach would be to clear my mind of the subject and try to eliminate preconceived notions (you can detect these when you reach premature conclusions in a line of thinking). Then, start again.

The theory is that a given thought pattern is self-reinforcing and you need a break between old thinking and new thinking.

I hope this helps, though it may be predicate on being me. :)
1.24.2009 12:03pm

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