As I do on occasion, I want to cover a couple of subjects briefly in today’s column. An appropriate headline for it might be “Dispatches from the Legal Front.” (Readers should know that I don’t write the headlines for this column. The first time I see them is when they appear online or in print.)
The first bit of interesting information I think some of you might want to know about is a battle going on now in print and on the Internet between Supreme Court Justice Scalia and Judge Richard Posner, a judge on the 7th Circuit U.S. Court of Appeals. Judge Posner, who is based in Chicago, began the battle with a review in a recent issue of the New Republic of Justice Scalia’s new book (written with Bryan Garner, a noted legal scholar and lexicographer), “Reading Law: The Interpretation of Legal Texts.”
The title of the review pretty much makes Judge Posner’s views of Justice Scalia’s writings clear: “The Incoherence of Justice Scalia.” That title may well be the nicest thing Judge Posner has to say about Justice Scalia. Professor Brian Leiter of the University of Chicago characterized the review as “scathing.” The following quote from Judge Posner is an example of just how scathing the review is: “Omitting contrary evidence turns out to be Scalia and Garner’s favorite rhetorical device.”
The battle between the two judges is now going on in blogs and, no doubt, we will soon see a reply from Scalia and Garner in print. What is so fascinating about the battle is that these two judges now seem to be at war. Posner and Scalia were longtime colleagues at the University of Chicago Law School. Posner is certainly not a liberal. He is one of the founding fathers of the “law and economics movement,” which has been embraced by political and legal conservatives around the world.
While Posner now calls himself a “pragmatist” rather than a conservative, his conservative credentials are impeccable. But most interesting, perhaps, is the fact that a federal Circuit Court Judge has decided to be so openly critical of a Supreme Court justice. This is, if not unprecedented, highly unusual. Perhaps, this is a sign of just how far Justice Scalia has moved from the mainstream of American legal thought. Whatever the causes, however, the dispatches in this battle between these two major legal luminaries are certainly fun to read.
The second bit of interesting news that I want to pass on today concerns a recent announcement by the U.S. Department of State. I am teaching a course on the “law of armed conflict” this semester, so I’ve become a regular reader of the blog “Lawfare,” which reports on issues concerning the subject. The other day the blog reported that the State Department had now announced that it had determined that the Haqqani Network was a “foreign terrorist organization.”
The Haqqani Network is a terrorist group operating on both sides of the Afghanistan-Pakistani border and is believed by many observers to be supported by Pakistani Intelligence. By characterizing the group as a “foreign terrorist organization” the State Department brings the group under a whole range of American laws. For instance, anyone providing “material support” to the group or receiving “military training” from the group will now be guilty of a felony.
I wonder whether this development means that the U.S. has decided to take a harder line against groups in Afghanistan and Pakistan who have been protected by the Pakistani Intelligence Service up to now. Personally, I think that it’s a good idea. So, apparently, does the Department of Defense since, according to Lawfare, the Department of Defense announced that it “welcomed” the Department of State’s decision.