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Hey on an unrelated note, MD did not vote on the Global Warming Solutions Act before the legislature let out for the season yesterday. I have a brief blurb up at http://local-warming.blogspot.com/2008/04/md-leg-session-ends-without-global.html. Thought you might want to know.

Jonathan H. Adler

C'mon guys. You should know better than to promote that Rosen piece. Unlike much of his work, that one is just riddled with errors and misrepresentations (even if it does cite CRC's Doug Kendall). I shred Rosen's shoddy effort to write on environmental law here:


Tim Dowling, CRC

Jonathan – Several of the points in your Volokh Conspiracy post are well-taken, but in your zeal to “shred” Rosen (as you call it), you stumble into errors and misrepresentations on your own.

For example, in discussing American Trucking Ass’ns v. EPA, you describe the non-delegation analysis as being set forth “in a portion of the opinion written by Judge Stephen Williams (not Judge Douglas Ginsburg as Rosen claims -- presumably in order to insert a gratuitous reference to ‘Constitution in Exile’).”

But Rosen didn’t claim that Judge Ginsburg wrote this portion of the opinion, only that he embraced the argument, which he assuredly did notwithstanding the authorship of this portion by Judge Williams. Different sections of the majority opinion were written by each of the three judges on the panel, but it was issued “per curiam”, in other words, for the court, which makes clear all three agreed with the opinion. The only exception is that Judge Tatel, in addition to writing his portion of the majority opinion, also wrote a separate dissent expressly disagreeing with the non-delegation discussion in Part I. To suggest as you do that Judge Ginsburg did not endorse the non-delegation discussion is to ignore the very meaning of “per curiam,” no? A unanimous Supreme Court certainly saw it that way, describing the non-delegation discussion as a holding of the court (with Judge Tatel dissenting), not simply the individual views of Judge Williams.

In the grand scheme of things, this might seem like a minor discrepancy, but it’s actually a fairly significant point in your post, since you are accusing Rosen of misrepresenting the facts in order to make a “gratuitous” dig against Judge Ginsburg, when in fact the D.C. Circuit’s opinion reflects acceptance of the non-delegation argument by both Judges Ginsburg and Williams, an argument that certainly is part of the so-called Constitution in Exile as it was described by Judge Ginsburg.

Perhaps when the left and right are done “shredding” each other, we all can return to a more careful analysis of the law.

Jonathan H. Adler

Tim --

If my parenthetical comment about Ginsburg is the only thing you found objectionable in my critique of Rosen, I don't think that says much for his original piece.


Tim Dowling

No, it’s not the only thing I found objectionable in your post. It’s a representative example. Another would be your dig at Doug Kendall, which is not supported by the quote he provided to Jeff Rosen. But as I said in my first comment, I did find several of your points well-taken. It’s unfortunate when those on the left or the right or in the middle become convinced they have a monopoly on truth and virtue. Believe me, I am not immune to this way of thinking either, but we should all try to resist it.

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