Law Profs Scrutinize ACLU v. NSA Ruling

If you’re the type to enjoy a meaty discussion of constitutional issues — and who of us isn’t? — you should check out the hubbub over U.S. District Judge Anna Diggs Taylor’s decision in ACLU v. NSA. While every mainstream news outlet has the basics of her fiery opinion, you have to dig a little deeper into the legal community for some of the more interesting discussion.

One of the best places to go is Balkinization, the group blog headed by Yale law professor Jack M. Balkin. Since Thursday, Balkin and co-blogger Marty Lederman, a law prof. at Georgetown, have posted three thoughtful commentaries on the ruling, which have generated interesting discussion from readers. There are also links to the opinion and other media. The profs put Taylor’s ruling under a microscope and find that there’s plenty of rhetorical energy but not a lot of substantive matter underneath.

Balkin’s post mining the “secret advantages” of the ruling — which he sees as a bad road to a good destination — is particularly interesting if you’ve been watching this issue. He suggests Taylor’s opinion may be a masterful preparation for inevitable appellate review: Most of the reasoning, he says, won’t stand up, but she has shaped the argument in a way that is likely to preserve her outcome.

(Legal Pad tips its cap to Slate‘s invaluable “Today’s Papers” daily news roundup, which led us to the Balkinization blog.)

Brian McDonough


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