January 23, 2009

And the baby elephant in the room

Prof. Esenberg enters the baby mama fray. The elephant being, of course, the question of whether the court of appeals was correct in announcing and applying the subjective (that is, one which requires the court to put itself in the defendant's shoes) standard that it did.

Prof. Esenberg, as a self-styled proponent of "judicial restraint," would, I suspect, solve the dilemma described below by affirmatively (activist-ly?) abandoning that particular test.

To the extent that that test was announced as an arguably new rule fashioned from extra-jurisdictional principles, it would take a further ruling of the Wisconsin Supreme Court to overcome its continued application (and maybe its publication is an invitation to do so).

In which case, I might be inclined to argue that the Supreme Court would need to address — and perhaps even subsequently discard — some very fundamental due process guarantees.

I wish the court of appeals had gone into more substantive detail on those questions, just as I wish that the dissent could have been more forceful in condemning what it may have perceived as the fabrication and/or assembly of "new law" rather than simply ignoring it.

I should mention quickly that I had set out only to clarify the court of appeals decision, not so much to defend it, but the more I think about it the more defensible it becomes (especially now that I've got the entire Milwaukee Journal-Sentinel editorial board on my side).*

In any event, it's a fascinating, worthwhile discussion and one that raises a wide range of both legal and local public policy concerns (which is not to suggest that those are always separable, by the way).

* McIlheran too? That's downright frightening.

eta: Also posted at Prof. Esenberg's own blog, complete with discussion well underway (and featuring several of the most thoughtful blog commenters in the business).**

** Scratch that, as I just left a comment, thereby lowering the collective IQ by a good 20 points.

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