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March 25, 2015 3:18 PM   Subscribe

Larry Tribe has a new client. (SLNYMag)
posted by PMdixon (9 comments total)
Tribe responded by insisting he was only making narrow legal arguments. His response on this point simply makes no sense to me

In constitutional law, there's a right way to do things and a wrong way to do things. One can use unconstitutional means to reach good policy ends.

I don't see how that's so complicated.
posted by jpe at 3:35 PM on March 25, 2015

For those who don't get the reference in the title, this might help.
"And daddy won't you take me back to Muhlenberg County
Down by the Green River where Paradise lay
Well, I'm sorry my son, but you're too late in asking
Mister Peabody's coal train has hauled it away"
(from "Paradise", by John Prine)
posted by Nerd of the North at 3:44 PM on March 25, 2015 [7 favorites]

In order to help understand what is topical and what would be a de-rail, can you clarify what the topic of this post is? Is it:
1. That Larry Tribe has taken on the case to establish that the EPA's climate plan is unconstitutional?
2. Whether the EPA's climate plan is or is not constitutional?
3. That Larry Tribe, a practicing lawyer, was hired by Peabody Energy Corporation?
4. Something about liberal and conservative interests?
5. Something about Larry Tribe thinking coal is better a clean environment?
6. Something else?

If it is 1, 2 or 3, it might be helpful to consider his actual argument in reviewing this. Here is his brief. Here is a comment by him in a Harvard Law faculty blog, and a reply to a response.
posted by dios at 4:04 PM on March 25, 2015

In order to facilitate people's participation in this thread, I will point out that there are many activities that are

1) not illegal, and
2) may even considered an obligation

that many consider to be

1) morally wrong,
2) bad for some or all of the country, the environment, or individual citizens, and/or
3) indicative of people in positions of responsibility being willing to perform some acts that they would not perform if they were not being given money.

Any explicit assertion that discussion be limited to the first two points, to the exclusion of the latter three, or any arguments that implicitly assert them, are likely to be met with reactions ranging from simple disagreement to outright scorn.
posted by benito.strauss at 4:28 PM on March 25, 2015

In order to help understand what is topical and what would be a de-rail, can you clarify what the topic of this post is?

The topic of the post is the NYMag article I linked to.
posted by PMdixon at 4:44 PM on March 25, 2015

(also the stated interpretation of the 5th amendment is insane. pls to be applying given logic ("investment-backed expectations" = property that needs to be compensated for) to CCA (Corrections Corporations of America) or farm subsidies, if actual example of "making coal power generation less profitable is a taking from Peabody" is not batshit enough for you)
posted by PMdixon at 4:59 PM on March 25, 2015

The topic of the post is the NYMag article I linked to.

So it is about someone's opinion about what Tribe is doing as opposed to actually what Tribe is doing? Well, let's look at the article's own title:

Why Is a Liberal Professor Helping Mitch McConnell Fight for Coal Companies?

The answer is that Tribe is not helping Mitch McConnell Fight for Coal Companies. So the question is based on a false premise. Tribe was hired by a company, Peabody--not Mitch McConnell. Tribe agreed to the project because he believed in a very narrow legal point that he has made completely clear that he supports even if he wasn't being paid. He sets it out this way in the brief which I'll quote since it is completely ignored in the article and the post:
The defects in the Proposed Rule transcend political affiliations and policy positions and cut across partisan lines. The central principle at stake is the rule of law – the basic premise that EPA must comply with fundamental statutory and constitutional requirements in carrying out its mission. The Proposed Rule should be withdrawn. It is a remarkable example of executive overreach and an administrative agency’s assertion of power beyond its statutory authority. Indeed, the Proposed Rule raises serious constitutional questions.
In other words, it has nothing to do with helping Mitch McConnell, supporting coal, opposing the environment, denying climate change, or causing problems for the President. On the contrary, he takes the effort to make clear he supports addressing climate change in every way we can. But he believes there is a principled legal issue here. He explained himself directly:
To be sure, those who believe, as I do, that the global challenge of climate change is one we need to confront in every responsible way available to us, might be tempted to take just about any first step toward meeting that challenge. But this first step? It’s a first step that, by the account of those who urge it, barely gets us anywhere – and does so by putting much of our legal framework at risk, not to mention imposing serious risks of electricity blackouts and stranded workers and significant harm to whole sectors of our national economy. No, that’s not something I can just sit by and remain silent about. An old and wise maxim has it that when one needs to cross a chasm, leaping halfway (or, as in this case, a tiny fraction of the way) is not likely to represent any progress at all. Having incurred the harms that follow hitting the bottom of the chasm, one might be hard-pressed to climb back up and try again.

So too here. When I make such a fuss about the rule of law and the importance of obeying the Constitution in the means we choose to approach even this massive problem, it’s not because I underestimate the problem; it’s because I deeply believe that the solution we try shouldn’t be one that tramples on our constitutional system...That’s why I have invoked such vivid metaphors as the one I used when I told Congress on March 17 that burning the Constitution must not become part of our national energy policy.

I knew when I undertook this challenge that many of my closest friends, and many with whom I have been in the trenches fighting for environmental sanity ever since teaching what I believe was the first environmental law course in the Nation, would take me to task for saying what I have said about this matter. So be it.
There is a long history of lawyers advocating for the rule of law to be followed while not agreeing with the underlying client or policy at issue. It's famously the point of the discussion in A Man for All Seasons:
Roper: So now you'd give the Devil benefit of law!
More: Yes. What would you do? Cut a great road through the law to get after the Devil?
Roper: I'd cut down every law in England to do that!
More: Oh? And when the last law was down, and the Devil turned 'round on you, where would you hide, Roper, the laws all being flat? This country's planted thick with laws from coast to coast– man's laws, not God's– and if you cut them down—and you're just the man to do it—do you really think you could stand upright in the winds that would blow then? Yes, I'd give the Devil benefit of law, for my own safety's sake.
Tribe makes clear that he believes this issue is about the rule of law. And as much as he wants to effect climate change, he doesn't believe it should be done in a constitutionally infirm way. Is there a problem with him believing that?
posted by dios at 5:12 PM on March 25, 2015 [2 favorites]

But your flag decal won’t get you into Heaven anymore,
We’re already overcrowded from your dirty little war
Now Jesus don’t like killin’
No matter what the reasons for.
And your flag decal won’t get you into Heaven anymore.

posted by benzenedream at 5:39 PM on March 25, 2015

So if it really is a matter of principle, Tribe shouldn't mind disclosing what he is being paid by Peabody. Word on the street is that he bills at $2000 per hour. You might be surprised how the prospect of $2000 per hour can focus the mind.

In a case of civil litigation, lawyers will quite commonly demand that opposing expert witnesses disclose their fees before the jury. Should we expect any less of Lawrence Tribe if he is going to try his case in the court of public opinion?
posted by JackFlash at 7:51 PM on March 25, 2015

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