Friday, February 25, 2005

Using bad laws for good

Volokh blog member David Bernstein calls hypocrisy on law professors who opposed the Supreme Court's granting the Boy Scouts a right to discriminate against homosexuals. Bernstein says it's hypocritical for them to then turn around and use the Supreme Court decision to argue that their law school has a right to discriminate against an employer (the US military) who practices discrimination against gays. Bernstein's wrong.

A lawyer who fails to cite useful precedent that she dislikes commits malpractice. Failing to salvage the good out of a bad outcome is just stupid. The only way the law profs Bernstein mentions would be hypocritical is if they previously said, "Man, that Supreme Court decision was terrible! We hope no one ever cites to it, as that may limit its effect."

Environmental regulation presents a similar issue. The Bush Administration has introduced a peer review, best data policy to benefit industry by slowing down good environment regulations that protect the public. What they forgot is that the Forest Service and other partially-captured agencies use "expert judgement" as the basis for concluding their projects will not harm the environment. Environmentalists would be crazy not to take the policy of peer review and throw it back in the administration's face when they try to ram logging projects through Forest Service review.

When given lemons...

P.S. As to the root issue of whether disciminatory employers should be allowed to recruit on campus, I'm not sure what I think, except that they should let them all in, or none of them. Libertarians should be prepared for seeing Klan wizards showing up on campus just to annoy people.

Update: Bernstein adds a clarification that the hypocrisy is in seeking to expand the effect of the Supreme Court decision in one area while denying it in another, similar area. That's a better argument, although it mostly sounds to me like bad tactics unless you've got good factual arguments for distinguishing the two. His comments about the Professor who proposes anti-hate speech codes seem pretty good to me, although maybe it's just because I hate those codes.

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