How Toxic is Thomas?

Pat McIlheran has an interesting find in today’s Journal Sentinel, commenting on Judge Randa’s underreported decision in Gibson v. American Cyanamid. Judge Randa held that application of the Wisconsin Supreme Court’s Thomas decision (which applied something called risk contribution theory to hold lead paint pigment manufacturers collectively responsible for all harm from that product) would violate the federal due process rights of a defendant who had not itself manufactured lead paint pigment, but had assumed the liabilities of a manufacturer who had.

I spoke briefly with Pat yesterday on the potential fallout from the case and he quoted part of what I said. (The tyranny of 800 words is best understood by those who must submit to it.)

Here’s a more expanded version.

Continue ReadingHow Toxic is Thomas?

Best of the Blogs

What do we have this week? Over at the wonderful Mirror of Justice, you can follow a debate involving Michael Perry, Mike Scaperlanda, Robbie George, Robert Hockett and Rick Garnett  and others (I’ve linked to some but not all of the posts in the thread) on Pope Benedict XVI’s concern about the “dictatorship of relativism.”  Professor Hockett’s argument that terms like “relativism” and “tolerance” often mask conclusions rather than do much argumentative work reminded me of Steven D. Smith’s excellent new book, The Disenchantment of Secular Discourse. I just finished reading it and hope to  blog on it shortly.

At Public Discourse, Rob Vischer considers the Supreme Court’s recent decision in Christian Legal Society v. Martinez upholding a requirement at Hastings Law School that recognized student organizations may not exclude students based upon their refusal to accept the organization’s objectives or beliefs. Rob concludes:

The next challenge is clear: we must think seriously about how to help deepen our public discourse about discrimination and diversity to include recognition that associational diversity is a key component of religious and moral liberty, and that even if a university now has the right to make all groups accept everyone, it is a right best left unexercised.

At Ballkinization, Jack Balkin expresses concern over a decision Thursday by a district judge in Massachusetts v. HHS finding that the Defense of Marriage Act violates the Tenth Amendment. 

Continue ReadingBest of the Blogs

More Contention on the Wisconsin Supreme Court

Last Thursday, the Wisconsin Supreme Court finally issued opinions on recusal rules that it adopted earlier in the term and which essentially say that a duty to recuse cannot be be based solely on the receipt of a lawful campaign contribution or a lawful independent expenditure made on a judge’s behalf. The Court also amended a preexisting rule to permit a judicial candidate’s campaign committee from soliciting funds from persons involved in proceedings in which the candidate, if elected or reelected, is likely to participate. 

The majority opinion and dissent continue to reflect the sharp and bitted divisons on the Court. I wish that would get better.

I have an article on judicial recusal coming out in the Wake Forest Law Review, so it’s a subject that I have been thinking about. I have the following quick observations on the Court’s decision. 

Continue ReadingMore Contention on the Wisconsin Supreme Court
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