Sunday, August 20, 2006

the decision should be affirmed

oldschool is a lawyer (from memory). here's his take on the latest 'george bush is a criminal' legislation - and the concerns about whether the judgement was well-written or not, and what that portends:
"The standard for appellate review should be something along the lines of "if there is any rational basis in law upon which the underlying decision may be affirmed, even if such is basis differs from that used by the trial court, the decision should be affirmed.' (pardon the paraphrase, but I think that that's about right).

So I am not among those who are wailing and gnashing teeth about the quality of the decision, for it really should withstand appeal. This perhaps assumes, of course, more integrity of federal appeals courts than may be warranted, and might possibly be naive as to the true extent of political influence - but - if it's played by the book, the decision should stand.

*If*, however, the appellate court does find itself really wanting to overturn, but still unwilling to say that warrantless wiretapping is *not* a violation of FISA and the 4th, I'd look for 'em to hang their hat on the issue of 'standing'. - i.e. that none of the plaintiffs proved a harm personal to them, differing from that of the population at large. Standing could end up being the quiet knife-in-the-back to this case - I am a bit worried about that one."
thanks oldschool.

incidentally, i have been somewhat curious about the 'standing' issue - because it also struck me (as a lay person) as a potential weak spot, but i hadnt seen anything to suggest that this might be an issue on appeal - to the point where i'd almost come to assume that once standing had been granted, it couldnt be an issue on appeal.

that aside, good news from oldschool - particularly given the 5-3 hamdan ruling.

4 comments:

oldschool said...

Actually, I *was* a lawyer. Haven't practiced for about 5 years. BUT, I started, just this week, taking all the continuing legal education classes I need in order to get the old license back. This may prove to be monumentally stupid, given that the last time around, the (crim defense) load ended up in what I call "The Ordeal". (technical medical diagnosis - Blew Up. Big Time.)

But I was feeling the pull of a need to do something that matters, so off I go again. Finding a way to pay the bills while doing so may be the biggest challenge. Anyway, soon it's off to tilt at some windmills for me.

For the record, I see no reason why any of this should keep me from talking out of my ass, per usual, at least here among friends. Nor should it affect my continuing fever.



P.S. Hamdan was 5-3 only because Roberts recused himself. For the ACLU case, you're looking at a rather shaky 5-4 going in.

lukery said...

good luck, my friend. my personal sense is that there are some BUBT events that 5 years can cure.

best wishes

lukery

LeeB said...

Oldschool: I second Lukery!

. . . and I suspect the *lawyer* part of your brain is not disabled, even if you aren't practicing or have allowed your bar card to lapse . . .

rimone said...

the best of luck to you, oldschool. what lukery and LeeB said above.