This Wall Street Journal ($) book review previews U.S. Supreme Court Justice Stephen Breyer‘s soon-to-be-published book, Active Liberty: Interpreting Our Democratic Constitution (Knopf Sept. 2005) in which Justice Breyer offers a rejoinder to his longtime intellectual opponent on the Supreme Court, Justice Antonin Scalia, who advocates “originalism” – i.e., a more literal interpretation of the Constitution’s meaning at the time of its writing. Justice Scalia’s views were set forth in his book, A Matter of Interpretation: Federal Courts and the Law (Princeton Univ. Press 1997).
In the book, Justice Breyer advances the longstanding criticism that originalism is simply a self-righteous political cover for the fact that all Supreme Court justices, regardless of their judicial philosophy, rely on common elements such as “language, history, tradition, precedent, purpose and consequence” when interpreting laws. It’s the way in which they afford different weight to each factor, contends Justice Breyer, that often has a monumental impact on the American republic.
Justice Breyer’s view does have merit, as the entire originalist rationale has a questionable historical basis (the Founding Fathers had widely divergent views on the Constitution and the role of the judiciary) and certainly does not always lead to a coherent uniform approach to resolving cases. However, even though some of the originalist-based decisions have had the consequence of enlarging the governmental bureaucracies and divesting local communities of control, my sense is that Justice Breyer’s approach is still more likely to result in debacles such as this.
Update: Jim Lindgren over at the Volokh Conspiracy speculates as to the source of Justice Breyer’s theory.

Genie Tyburski via Tom Mighell passes along this AskSam website that provides a well-categorized database of the opinions of U.S. Supreme Court nominee, D.C. Circuit Judge John G. Roberts (prior posts here).
By the way, Tom is the grand-daddy of Texas blawgers and his legal research and technology blog — InterAlia — reached its three year milestone this past week. Tom’s blog is a phenomenal resource for anyone involved or interested in legal research, and Tom is one of the pioneers in redefining the way in which high-quality, specialized information is delivered to large numbers of people through the blawgosphere. Congratulations to Tom for a job well done and keep up the good work!
By the way II, in case you missed it on television, go over to the Comedy Central website, scroll down and watch the “Judge Report” video clip from the Daily Show, in which Jon Stewart cleverly excoriates the NARAL over its now infamous ad against Judge Roberts. It’s absolutely hilarious.

Coudert Brothers LLP, one of the oldest big U.S. law firms, elected to disband yesterday in a vote of its partners. The firm will remain in business as its lawyers move on to new jobs.
The firm was established in New York in 1853 and has long had international offices and clients. It was one of the first U.S. law firms to open offices in Paris, London, Hong Kong and other foreign locales, and it still has 17 offices in Europe and Asia. Nevertheless, in recent years, Coudert had seen many of its top partners cherry-picked by competitors, and merger negotiations with several firms over the past two years had been difficult because of Coudert’s inferior profitability compared with the prospective merger partners. Thus, the partners apparently concluded that a liquidation held more value for owners than a bad merger.
Now, if only this process could occur with regard to a few legacy airlines . . .

The Third Circuit Court of Appeals issued this decision yesterday in connection with the Owen Cornings chapter 11 case in which it reversed a bankruptcy court decision that substantively consolidated Owens Corning and its numerous units as one entity for purposes of confirming the company’s reorganization plan.
Substantive consolidation in large reorganization cases is a favored tactic of tort claimants (it was favored by asbestos claimants in the Owens Corning case) and creditors of a company’s unprofitable units that allows those creditors to share in distributions generated from the company’s more profitable units. Lenders to those profitable units generally balk at substantive consolidation because it dilutes the dividend that they would otherwise receive on their claims against the profitable unit by allowing the claims against the unprofitable units to share in distributions from the profitable unit. In the Owens Corning case, the Third Circuit’s decision is a victory for a group of banks led by Credit Suisse Group’s Credit Suisse First Boston that has hundreds of millions of dollars riding on the separation of Owens Corning from its more profitable units.

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Former Houston district and appeallte judge Eric Andell — who formerly served as deputy undersecretary under fellow Houstonian Rod Paige at the U.S. Education Department — was sentenced to one year of probation and fined $5,000 Friday after pleading guilty to charges that he intentionally had the federal government pay about $9,000 for travel in which he conducted personal business and worked as a visiting judge while still employed at the Department of Education. Here is a previous post on the matter and here is the Chronicle story on the sentencing.
One of the most popular local Democratic politicians, Mr. Andell is a genuinely good man who made a mistake and owned up to it in a responsible manner. That he avoided any prison time is a just result.

Gordon Wood over at the Conglomerate blog has put together an impressive list of expert contributors for an upcoming forum on the widely-anticipated decision of the Delaware Chancellory Court in the corporate case of the decade — i.e., the civil lawsuit over The Walt Disney Co. board’s decision to pay Michael Ovitz a rather generous severance package for essentially doing nothing during his short stay at Disney (earlier posts on the case are here, here, and here).
As Professor Wood notes, now all we need is a decision, which was expected before the end of July, but has now apparently been pushed back. My speculation is that the decision was close to completion when Professor Ribstein posted his recent prediction on the decision, which sent Chancellor Chandler and his clerks scampering back to the drawing board. ;^)
Seriously, though, the Conglomerate forum is yet another example of the way in which the blogosphere is redefining the way in which information is delivered to the public. Prior to the blogosphere, the only way that one could obtain the type of expert analysis that such a forum delivers would be to luck upon an op-ed in a newspaper or dig through stodgy law review articles. Now, that analysis is delivered in an efficient and effective manner for the world to peruse. That’s a remarkable development, and one that all of us should be careful not to take for granted.