July 15, 2005

The Power of Blawgs

by Sean Sirrine

For anyone out there that thinks blawgs are an interesting fad with no real substance, just take a look at what Todd Zywicki over at The Volokh Conspiracy has managed to do with a simple post. Now, before I get too far into this post, I'd like to mention to readers that Zywicki is one of my favorite economists, but I disagree with his position on FAIR v. Rumsfeld.

An amicus brief is being prepared to be filed in the Supreme Court on behalf of law students and law professors urging the reversal of the Third Circuit's opinion in FAIR v. Rumsfeld. The brief will be filed in support of the constitutionality of the Solomon Amendment. The brief is authored by Nelson Lund, Dan Polsby, and Joseph Zengerle of George Mason Law School and several lawyers from the law firm of from Wiley, Rein and Fielding.

If you are law professor and you think you may be interested in signing onto the brief, you can download a copy of the brief here. Instructions for how to go about affixing your name to the brief are provided there as well as well as who to contact for further info.

Amazing! Does anyone doubt that amicus briefs will become a more powerful influence on the courts when we have profs like Zywicki passing it around for hordes of law professors to sign? Like I said, I don't agree with his position, but damn if that wasn't one of the smartest things I've ever seen.

Law students from these schools are represented in this brief:

Capital University Law School, Case Western Reserve University School of Law,
Catholic University School of Law, DePaul University Law School, Georgetown
University Law School, George Washington University Law School, Harvard
Law School, Hofstra University School of Law, New York Law School,
Northwestern University School of Law, Roger Williams School of Law,
University of Florida School of Law, University of Pittsburgh School of Law,
University of South Carolina School of Law, University of Texas School of Law,
University of Washington School of Law, Wake Forest University School of

So if you're a law student that disagrees with this brief you better find another amicus brief to sign!

I'll briefly mention some of the reasons I disagree with this brief. Here are the main reasons these amici are for the Solomon amendment (italics from the brief):

1. If the Third Circuit’s judgment is affirmed, amici law students will be deprived of opportunities to acquire information from military recruiters about potential careers in the armed forces.

I can't really see how law students will be deprived because the military recruiters can't come on campus. That just seems silly. I plan on talking to the military recruiters, and I can find their office just fine.

2. Moreover, amici law professors will be undermined in providing professional guidance to students interested in careers in public service.

Professors may still provide guidance to their student, in fact; maybe they could inform the students where they can meet with recruiters.

3. The Third Circuit’s judgment will also frustrate the core mission of academic institutions – promoting the free and open exchange of ideas.

Hmm, I don't believe that any professors would be willing to argue that the KKK should be allowed to recruit on campus. So, this statement seems overly broad.

4. And, it will deprive the nation’s armed forces of a diverse pool of candidates for legal careers.

I don't think so. In fact, this case has sparked more of an interest in the JAGs for me. Those of us that are interested will still have the opportunity to join; we just don't get to do it on campus.

This is a Spending Clause case, as the District Court correctly recognized. Forum for Academic and Institutional Rightsv. Rumsfeld, 291 F. Supp. 2d 269, (D. N.J. 2003), rev’d, 390 F.3d219 (3d Cir. 2004). The “Solomon Amendment,” 10 U.S.C. §983(b), attaches a few easily understood and complied-with conditions to the voluntary acceptance of federal funds.

I agree that the conditions are easily understood, but what I believe this brief fails to account for is whether there is ever a condition for receiving federal money that is unconstitutional. Obviously there are, but this brief attempts to show that the Solomon Amendment must be followed just as "Title VI of the Civil Rights Act of 1964 as amended and Title IX of the Education Amendments of 1972." Why? What makes this the same? It seems inherently backwards to equate a ruling from the Supreme Court [Grove City College v. Bell, 465 U.S. 555 (1984)] establishing that schools may not discriminate with a suggestion that because schools could not discriminate in that case they have to allow organizations that discriminate in this one.

No one understands job fairs and interview weeks as forums of expression for the law schools. Rather, they are simply an opportunity for the students to receive and evaluate first-hand information about various careers. The right of access is for a short time and demands little space. The Third Circuit’s farfetched conclusion that this amounts to a “forced” endorsement of military employment displays a singular lack of understanding of the forum involved and the scope of the Solomon Amendment itself.

I understand the argument, and it is very persuasive, but to refuse to acknowledge that allowing recruiters on your campus is an endorsement of said recruiters makes it less valuable. Like I said earlier, who would want the KKK to recruit on their campus? They wouldn't because it would be an endorsement of something most of us hate.

I can go on and on, but I feel that this is probably a sufficient beginning to some debate over this topic. I welcome any comments or posts on this subject, and would love to get more in depth if there is an interest.

July 15, 2005 05:43 PM | TrackBack

I agree with you that Zywicki's use of a widely-read blog to publicize an amicus brief is a smart strategy, but to answer your "does anyone doubt..." question, I wonder if amicus briefs might become LESS influential now that the courts are aware that the internet makes it easy to recruit a horde of signatories.

Judge Posner has recognized for a long time that many amicus briefs are just "votes" for the outcome of the particular case that cover much of the same ground as the briefs for particular parties. See Voices for Choices v. Ill. Bell Tel. Co., 339 F.3d 542 (CA7 2003). Now that the internet has made it possible to bring more cases to the attention of more people, it's only natural that more people will try to "vote" on the outcome of these cases. And of course the Supreme Court is used to seeing lots of lawprof amicus briefs every time it tries to decide a hot button social issue. Good move by Zywicki, but hardly the start of a revolution.

And to address your disagreement with the amicus brief, I think that reasonable people could disagree on the policy ramifications (whether FAIR v. Rumsfeld will actually hurt the military's recruiting efforts in the long run, etc), but it all comes down to whether the law schools' allowing recruiters on campus is really forcing them to endorse a message with which they disagree.

I think that the law schools have made it clear to anyone with half a brain that they loathe the military and that they see the Solomon Amendments as the equivalent of a gun to their heads. If I thought for a second that the administration at my law school welcomed the military recruiters, they've done a million things to disabuse me of that notion.

As for the Spending Clause argument, I don't know enough about the Supreme Court's spending clause cases to throw a guess out there.

Posted by: Farnsworth at July 19, 2005 08:46 AM

What the initial blog fails to emphasize, which the amicus brief makes the crux its argument, is that this case is about spending issues, not about First Amendment issues. Law schools on the side of FAIR liken this case to the Boy Scout scoutmaster case. However, that case was about MEMBERSHIP - those who want to be scoutmasters can't be gay. The Solomon Amendment is not about membership. No one is telling the LAW SCHOOL who to hire as Dean or assistant dean, or which professors to hire, or which ideologies to support. The Solomon Amendment simply says JAG recruiters get the same shot that everyone else gets. If you so choose to ban them from campus, you can, but you cannot receive future funding from the government. There is a different test one must apply to judge the constitutionality of a Spending Clause issue than a First Amendment issue. The amicus brief argues the wrong test was applied, and if you analyze the Solomon Amendment correctly, it will look much like Title VI or Title IX.

While the arguments our blogger above cut and pasted from the brief don't reach the heart of the brief's argument, there is some validity to the question of how important it is for recruiters to be accessable through career fairs. The job search process is EXTREMELY COMPETITIVE for an up and coming lawyer. Large firms, small firms, government organizations, pro bono groups, labor unions, local governments all want the best and the brightest law schools have to offer. An employer's participation in on-campus recruitment is VERY advantagous for both the employer and the student. Students can learn about employers they never considered applying to. Students can hand in resumes and sometimes interview on the spot. Employers get a good look at and a first impression of potential applicants. Contacts are made, jobs are found. Restricting the JAG recruiters from these events puts JAG recruiting at a serious disadvantage. It also puts students who never heard of JAG or konw nothing about JAG at a disadvantage if they find that kind of work exciting. They never are exposed, and will take a job with those who can hand out cards, programs, free pens, and the like. Access is everything. While the dedicated student who knows all about JAG and wants to seriously pursue it can easily call the office, the majority of those who would consider a career in the military had they had the info. are at a loss. They will go to the big firm or the DA, or something else.

As for the KKK argument. Let's say there was a group called the Jewish Sons of God and the Law. Say they needed some lawyers to work for them and their cause. Say they only hire Jewish students, simply turning away all Christians and Muslims, and even those who don't beleive in God. At a career fair, should this organization get the same opportunity to recruit as every other employer. Absolutely. To say otherwise would seem very un-PC. Does a law school endorse this group by allowing it access? Is it saying, "yes, we believe that organizations that recruit based solely on religious affiliation are perfectly in sync with the overarching mission of our law school"? NO. The military is not the KKK, and there is no assumption that the school endorses the military's value system simply by allowing attendance at a career fair. There is no pressing need for lawyers in the KKK, the KKK contributes nothing to the national security of our nation, and no one cares if major institutions slap the KKK in the face because of it's ideology. Frankly, to deny access and demand government funding anyway is a slap in the military's face that is unwarranted, completely disrespectful, and contrived to fit the slanted agendas of law school academia.

If you want to fight the "don't ask, don't tell" policy, do it. There are plenty of cases in the works out there arguing for and against. This case is not about "don't ask, don't tell," it's not about the First Amendment, it's about the Constitutional right the Congress has to raise an Army and apportion funds. That is the forum where this case should be argued.

Posted by: Vince at July 20, 2005 11:41 PM

Vince makes some interesting comments, and he's wrong, but this isn't the right forum to explain why (at length, with examples, and in a calm voice).

I can, however, say this: to take the defense position that "this is a spending case" because they say so, when the plaintiffs are suing on a 1st Amendment theory, is to be a partisan, rather than a neutral observer. The plaintiff is master of their claim, and to the extent that Dale is good law (it isn't, but it's binding precedent) it applies (poorly, but who's counting) to the facts at hand. Furthermore, based on Lawrence among other precedent, there is no longer a defensible argument that the military's discriminatory position is even rational, let alone a good idea- but there I'm being a partisan myself, rather than judicious.

Sean, thanks for an interesting post.

Anyone interested can, of course, find me over at my blawg at http://unusedandunusable.blogspot.com.

Posted by: Eh Nonymous at July 28, 2005 05:11 PM
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