Wednesday, May 10, 2006
Gall Call
.
Wounded pride is a likely motive, since there doesn’t seem to be any other reason to revisit this lead balloon a month after it initially crashed and burned. This is especially the case when the best Francisco can do to counter the "voluntary cessation" argument is to claim that the new board couldn’t "reasonably have been expected to re-pass the ID policy had Judge Jones declared the case moot," totally ignoring the possibility of another turnaround, just as sweeping, at the next election. The election results were actually close, with only a few percentage points separating the highest vote getters from the lowest, and convictions ran strong on both sides. The courts have made clear that the test of whether subsequent circumstances have rendered a case moot is a "stringent" one and it must be absolutely clear that the wrongful action cannot reasonably be expected to recur.
Besides the utter grasping at legal straws that it takes to think any judge or any appellate court would render a case moot or deny legal fees after a six week trial, it takes a special kind of chutzpah to try to blame the outcome on the new board when you consider that, back when the case was first filed and while the district’s own lawyer was recommending that it not go through with the policy, the old board rejected an offer by the plaintiffs to drop the suit without legal fees if the policy was rescinded.
Michael Francisco, who is the Discovery Institute’s designated law student, is displaying less than astute legal reasoning again. Perhaps stung by the criticism he received for the rather thoughtless support he gave to a truly legally clueless article by Seth Cooper and Joe Manzari, "ACLU Demands and Dover Designs," Francisco has returned to the claim that there was the potential in the Kitzmiller case for the new school board, elected just as the trial ended, to effect a dismissal of the case and avoid the legal fees of $1 million because the case would then be moot.
Wounded pride is a likely motive, since there doesn’t seem to be any other reason to revisit this lead balloon a month after it initially crashed and burned. This is especially the case when the best Francisco can do to counter the "voluntary cessation" argument is to claim that the new board couldn’t "reasonably have been expected to re-pass the ID policy had Judge Jones declared the case moot," totally ignoring the possibility of another turnaround, just as sweeping, at the next election. The election results were actually close, with only a few percentage points separating the highest vote getters from the lowest, and convictions ran strong on both sides. The courts have made clear that the test of whether subsequent circumstances have rendered a case moot is a "stringent" one and it must be absolutely clear that the wrongful action cannot reasonably be expected to recur.
Besides the utter grasping at legal straws that it takes to think any judge or any appellate court would render a case moot or deny legal fees after a six week trial, it takes a special kind of chutzpah to try to blame the outcome on the new board when you consider that, back when the case was first filed and while the district’s own lawyer was recommending that it not go through with the policy, the old board rejected an offer by the plaintiffs to drop the suit without legal fees if the policy was rescinded.
.
Francisco and the rest of the DI really have no shame.
________________
.
Timothy Sandefur over at the Panda's Thumb and Ed Brayton at Dispatches from the Culture Wars have responded at length to Francisco, which is only appropriate since he singled them out for criticism.
.
Frankly, it is a mildly amusing but ultimately pointless exercise with much akin to a game of whack-a-mole. No matter how emotionally satisfying it is for a time to pound someone like Francisco about the head, the imperviousness of such people to either embarrassment or moral suasion permits them to keep popping their noggins up for more.
.
