Comments on: DOMAnance and Submission of Bad Legal Briefs

By: Sissy Panty Buns

Sissy Panty Buns — Fri, 25 Sep 2009 18:51:34 +0000

The National Organization for Women has endorsed the National Equality March taking place in Washington D.C. on Oct. 11th, 2009 in an article on NOW’s site at http://www.now.org/press/09-09/09-21.html The content of your post deserves a longer comment than this – maybe later.

By: Liz N

Liz N — Tue, 16 Jun 2009 21:42:31 +0000

Rachel Maddow twitter’d something about this a few days ago and I couldn’t really make sense of the article. Thank you for explaining it to all us non-lawyerly folks; it helped me a lot.

As to the actual events… ugh. I think I’ll go reread stuff about Iowa legalizing gay marriage.

By: bluebears

bluebears — Tue, 16 Jun 2009 00:56:56 +0000

PS you’re like my one friend (attorney) who’s always emailing me, “hey did you read X opinion from X court? only 32 typed pages!” I’m always like, “oh I totally would’ve but Real Housewives was on”

By: bluebears

bluebears — Tue, 16 Jun 2009 00:50:38 +0000

weird. what an odd tactic to take. I refuse to read the brief though. blech.

By: Penny_Esq

Penny_Esq — Tue, 16 Jun 2009 00:46:12 +0000

@RocktheDebit: Ah, I see your point. On the other hand, the so-called originalists have been advancing that position for ages, and although I think the entire originalist/strict constructionist judicial philosophy is flat out wrong, not to mention completely subjective and egocentric, apparently enough people buy into it that “reasonable minds can differ” on its legitimacy. So I’d still say I don’t think Rule 11 is warranted quite yet, but it would be interesting to see them try.

By: RocktheDebit

RocktheDebit — Tue, 16 Jun 2009 00:37:10 +0000

Penny – I was thinking that some of the arguments in the brief, such as questioning the right to privacy, can be seen as frivolous arguments.

By: Penny_Esq

Penny_Esq — Tue, 16 Jun 2009 00:09:54 +0000

@RocktheDebit: What do you think is in the brief that would warrant sanctions? I think the problem isn’t so much its content, which is legally legitimate, but the fact that its thoroughness was unnecessary for the DOJ to prevail, AND could set back future efforts to overturn DOMA via the courts. Which seems to be contradictory to Obama’s stated position on DOMA, that it should be repealed or overturned. The issue is the strategy.

I’ve certainly drafted “kitchen sink” briefs in an effort to cover all the bases and preserve all possible arguments for further appellate consideration, but that’s the only reason I can think for the DOJ to have expounded at length on the substantive issue. I also expect DOJ lawyers to be smarter than me and better at crafting arguments such that they don’t need to cover their asses when their procedural arguments are strong. Maybe the powers that be at the DOJ felt they were ethically obligated to include a substantive argument as well? But no, that doesn’t really make sense because the brief is in support of a motion to dismiss, and consideration of substantive arguments is WAY premature. It’s a 12(b) motion, right?

At any rate, I hope it doesn’t come back to bite the Obama administration in the ass. But can’t you just hear Scalia disdainfully questioning the SG on the flip-flopping of the DOJ’s interpretation of the law?

By: RocktheDebit

RocktheDebit — Mon, 15 Jun 2009 23:12:00 +0000

Pandagon and Pam’s House Blend have been pretty good about showcasing it. (I’ve commented on some of the posts there using my given name).

In your legal opinion, is this brief skating towards a Rule 11 sanction?