Where Science Fails, Financial Intimidation Wins

For what it’s worth I agree with tribune on the merits of that strategy. I’m just a little more fed up with the game and think it’s time to get the legislative and executive branches to slap down the judicial branch. Dave, big dittos, but for that to happen the Old Guard in the media has to be overthrown. If a governor or legislature stands up to a judge on any socially conservative issue, the Old Guard in the dinomedia will lie and distort what the issue is about shamelessly and make the judge seem like an courageous person of courageous courage defending the "independent judiciary." Look at the coverage of Dover. I think Jones would have handled things much differently if things were portrayed more fairly. He clearly cares about how he is seen by the public. Actually, if the media were to start accurately describing the issues and expressing outrage over judicial overreach, most if not all the problems might be solved. You are actually seeing that happen a little in the Duke rape case. tribune7

For what it's worth I agree with tribune on the merits of that strategy. I'm just a little more fed up with the game and think it's time to get the legislative and executive branches to slap down the judicial branch. In the old days of the republic judges that got so far out of touch with the desires of the people they serve they got impeached for their impudence. It's been far too long since an example was made of one of these black-robed fascists. DaveScot

Dopderbeck– don’t try to reinstate the sticker program based on an argument that the consent decree isn’t binding on a newly elected board or on some kind of separation of powers argument. That’s a loser argument. It will buy contempt sanctions and hurt the cause. – instead, implement a curriculum that includes a course on “comparative philosophies and worldviews.” In that course, critique scientistic Darwinism and discuss why most people throughout history have believed in design in some form. In adopting that curriculum, state the board’s belief that it does not “disparage” Darwinism and therefore complies with the consent decree. – When this new curriculum is challenged, as one defense, assert that the consent order is unconsitutionally vague and an excessive restriction on free speech, to the extent it purports to prohibit any critique of Darwinism at all. That, I think, is a sound defense. Not bad :-) tribune7

dopderbeck On a ***tangential topic I did a little googling and found your expertise to be in the area of intellectual property. This is interesting as for two years I was one of a dozen engineers and a few in-house IP attorneys tasked with evaluating patent abstracts submitted by any of 35,000 employees at a $40 billion per year high tech company. I reviewed about a thousand abstracts, approved about a third of them, and AFAIK every one I approved was eventually granted. I'm the named inventor on four granted U.S.patents myself. It's even possible my former employer employed your former employer in the past on IP legal work. Did Dell Computer ever use your firm that you know of? ***Financial intimidation and legal shenanigans play a big role in the patent game amongst huge corporations with huge patent portfolios. The merits of any individual patent often play no role compared to the court costs of prosecuting or defending an alleged infringement and in this way the game is exactly the same as with the establishment clause harrassment suits brought by the ACLU. DaveScot

it’s a highest court in a neighboring jurisdiction I never heard that bit of legal acumen before. Does how close two states are to each other, geographically, figure into the merit of a citation? I guess Alaska and Hawaii would be in deep doodoo there and citations from Mexico and Canada would carry more weight. I'm still waiting for more or better citations than one court in the backwoods state of Alabama which ruled that one elected official or group of elected officials may enter into a consent agreement that gives up the constitionally or statutorially prescribed powers of their elected successors forever until the end of time. DaveScot

Larry and Dave -- S 489 is indeed interesting, maybe it's even good policy -- though I'm not sure it would be in all circumstances. That's a different point though. An Alabama Supreme Court opinion isn't binding in Georgia, but it likely would be quite persuasive, as it's a highest court in a neighboring jurisdiction. And the principles discusses are basic ones. Here's my constructive suggestions for the Cobb County board, if a new board is elected that is unhappy with the Consent Decree: -- don't try to reinstate the sticker program based on an argument that the consent decree isn't binding on a newly elected board or on some kind of separation of powers argument. That's a loser argument. It will buy contempt sanctions and hurt the cause. -- instead, implement a curriculum that includes a course on "comparative philosophies and worldviews." In that course, critique scientistic Darwinism and discuss why most people throughout history have believed in design in some form. In adopting that curriculum, state the board's belief that it does not "disparage" Darwinism and therefore complies with the consent decree. -- When this new curriculum is challenged, as one defense, assert that the consent order is unconsitutionally vague and an excessive restriction on free speech, to the extent it purports to prohibit any critique of Darwinism at all. That, I think, is a sound defense. dopderbeck

Here is an interesting one -- a Senate bill, S 489, titled "The Federal Consent Decree Fairness Act" --

The Federal Consent Decree Fairness Act (S. 489) would permit state and local governments that enter into a consent decree in federal court to file a motion seeking to modify or vacate the decree within four years, or upon the expiration of the term of office of the highest elected state or local official who authorized the consent decree, whichever comes sooner (school desegregation consent decrees would be specifically exempted.) . . . . Because the legislation calls for its retroactive application, S. 489 would apply to existing consent decrees, no matter when they were agreed to. -- from http://democrats.senate.gov/dpc/dpc-new.cfm?doc_name=fs-109-1-26

The bill picked up 26 co-sponsors (in addition to the sponsor), which is nothing to sneeze at. For details about the bill, see http://thomas.loc.gov/cgi-bin/bdquery/z?d109:s.00489: Because the plaintiffs in Selman v. Cobb County had already requested a brand-new trial, they would not be in much of a position to complain if they get one if the board of education re-instates the textbook stickers -- see http://www.pandasthumb.org/archives/2006/12/history_and_cob.html S 489 is also discussed on -- http://www.acsblog.org/guest-bloggers-guest-blogger-senate-489-replacing-phantom-problems-with-real-ones.html S 489 has drawbacks, but there's got to be some way to prevent nervous Nellie public officials from forever tying the hands of their successors. Larry Fafarman

dopderbeck Given that in Winston the case made it all the way to the Alabama Supreme Court and was based on the premise that the former school board had no capacity to give up statutory powers of later school boards through consent agreements it hardly seems appropriate for you to call my contention "absurd". The fact that you did says more about your knowledge of the law and the constitution than of mine. I would ask you now to retract all your assertions calling the premise "absurd" "ridiculous" "you don't know what you're talking about", et cetera. At any rate I don't see how an Alabama state court decision is applicable to Georgia. Each state has its own common law and when a Federal court is applying common law it is expected to apply that state's common law (see Erie which I cited earlier "There is no general Federal common law"). I await you finding a precedent that applies to Georgia. DaveScot

dopderbeck (comment #38) --

Ok, I wasted 20 minutes on Westlaw. No Georgia statutes yet. Below, however, are representative quotes from a couple of cases that outline where I’m coming from. I’d appreciate seeing the primary authority to support the opposing view.

Despite the precedents that you presented, it seems that there ought to be some limit on the power of public officials to sign away the rights of their successors. In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598 (2001), a federal district court ruled that the West Virginia legislature's repeal of a challenged statute, a "self-preservation" rule prohibiting nursing homes from housing people who would require assistance to exit the premises in event of a fire, mooted a lawsuit against the statute even though the legislature did not sign any promise that the statute would never be re-instated in the future. A discussion of the history of the case is in the dissenting opinion of Justice Ginsburg. Also, the majority opinion of the Supreme Court held that the plaintiffs were not entitled to an award of attorney fees, even though the lawsuit was the probable cause of the repeal of the statute --

Numerous federal statutes allow courts to award attorney’s fees and costs to the "prevailing party." The question presented here is whether this term includes a party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct. We hold that it does not. (emphasis added)

However, higher courts never dealt with the question of mootness in the Buckhannon case because the plaintiffs did not challenge the district court's finding of mootness -- Ginsburg noted that the "plaintiffs did not appeal the mootness determination. " Larry Fafarman

Ok, I wasted 20 minutes on Westlaw. No Georgia statutes yet. Below, however, are representative quotes from a couple of cases that outline where I'm coming from. I'd appreciate seeing the primary authority to support the opposing view. Winston County School Bd. v. Haleyville City School Bd. 738 So.2d 886 (Ala.,1999).

A consent judgment is in the nature of a contract, and it binds the parties as fully as any other judgment. Price v. American National Bank, 350 So.2d 328 (Ala.1977). A consent judgment acts as a final settlement of the claims raised, and under such a judgment the parties waive errors and irregularities, absent fraud or mistake. Hanson v. Hearn, 521 So.2d 953, 954 (Ala.1988). "Rules applicable to the construction and interpretation of contracts are applicable to the construction and interpretation of judgments. Thus, in construing a consent judgment, the intention of the parties derived from the judgment itself controls if its language is plain and unambiguous." Id., at 955. See Southern Housing Partnerships, Inc. v. Stowers Management Co., 494 So.2d 44, 47 (Ala.1986). To avoid the consent judgment, Winston County had to prove that it was based on fraud or mistake, or to prove that in 1972 the parties lacked the capacity to enter into the agreement on which that judgment was based. Based on our review of the record, we conclude that the Winston County Board presented no evidence indicating that the consent judgment should be set aside on the grounds of fraud, mistake, or lack of contractual capacity. See Grigsby v. Liles, 274 Ala. 67, 147 So.2d 846 (1962). The mere fact that new members of a school board disagree with their predecessors' actions taken in settlement of litigation does not create grounds to rescind a consent agreement. [7] We hold, therefore, that the Winston County Board had the capacity to enter into the 1972 consent agreement and that that consent agreement may not be unilaterally rescinded. It is true that school boards have a duty to consider all options in pursuing the best interests of the children in their charge; however, this Court will not allow the performance of that duty, standing alone, to form the basis for a school board's unilaterally rescinding a settlement agreement and thereby nullifying an otherwise valid and binding court order. (emphasis added).

Hernandez v. Board of Educ. of Stockton Unified School Dist. 126 Cal.App.4th 1161, 25 Cal.Rptr.3d 1 Cal.App. 3 Dist.,2004.

The retention of the trial court's jurisdiction to enforce the settlement agreement is no different than allowing a person with a contract with the school district to sue it for breach. The court is powerless to impose on the parties more restrictive or less restrictive or different terms than those contained in their settlement agreement. In this sense, the trial court has not retained plenary supervisory powers over the school district's student assignments, teacher, staff and administration hiring decisions, facilities and resources, transportation, or extracurricular activities, that are justified in the desegregation case by the school district's violation of the United States Constitution. The court simply has reserved the power to enforce, according to its terms, the contract they negotiated amongst themselves. Further, this may only happen upon motion filed by either party.

dopderbeck

The next school board can simply say “we didn’t sign this consent and we hereby repeal it and reclaim our statutory rights under the Georgia constitution”. Is that about right? Wrong, not the least because (a) the powers (not "rights") granted to the school board by the legislature include the ability to settle lawsuits and enter into contracts; and (b) the school board is considered a continuing entity. It is a basic misunderstanding to even suggest that the "next" school board is a different "we" than the "previous" board. It is one continuing body, with different members elected from time to time. This basic principle makes your argument absurd. Oh poor baby. Out of time all of a sudden. How convenient. Sorry I don't have time this evening to keep doing research that your incapable of doing or too lazy to do yourself; not that you'd ever bother to read it. The current board doesn’t have the authority to restrict future boards and Cooper doesn’t have the authority to enforce any such restriction. You have no idea what you're talking about. Cite the statute, federal rule of civil procudure, and/or case that supports your position. dopderbeck

The next school board can simply say “we didn’t sign this consent and we hereby repeal it and reclaim our statutory rights under the Georgia constitution”. Is that about right? You would think, but the school board would listen to their lawyers who would tell them not to fight, and if they should ignore them, the ACLU would take them to court again with the ACLU having nothing to lose and the school district having to spend money and time fighting it. And even if they should win, they would have to spend more since the ACLU would appeal. And they may very well not win. Remember a federal judge once basically took over the Kansas City School District. What has to be done is 1. Find a way to penalize the ACLU -- and its members -- when it files harassment lawsuits. 2. Get better judges tribune7

I believe there is, BTW, specific statutory authority for a local school board to enter into a settlement agreement or other contract that binds sucessors. I don’t have time to find it now, but at some point maybe later next week I’ll try. Oh poor baby. Out of time all of a sudden. How convenient. DaveScot

dopderbeck You wouldn’t argue that Congress is free every election cycle to break every long-term military procurement contract, for example, would you? No I wouldn't. Would you argue that if one congress consented to give up its right to military procurement and decreed that no congress ever again in the United States could procure military equipment, that the next congress couldn't reverse that decree and take up military procurement again? The Cobb county board gave up the statutory rights of the next board. I don't believe they have any authority to do that. The next board can come along and say sorry, but we aren't giving up the rights granted to us by the state of Georgia. DaveScot

dopderbeck said (comment #30)

You wouldn’t argue that Congress is free every election cycle to break every long-term military procurement contract, for example, would you?

The government can and does cancel or reduce long-term military procurement contracts. In one legendary incident, a new hire on the B1 project got a call that his job was canceled just as the movers were on their way to pick up his stuff. Larry Fafarman

dopderbeck So, every time a new school board is elected, all the actions, policies, resolutions, etc. of the previous school board are immediately repealed? They can repeal anything they want so long as the act doesn't violate Georgia's constitution or statutes. Let me know if there's any part of that you don't understand. I read Georgia's state constitution and statutes dealing with state and local school boards and nowhere could I find anything empowering any local board to limit the statutory powers of their successors. The terms in the consent order where that power is taken away from future boards is bogus. The current board doesn't have the authority to restrict future boards and Cooper doesn't have the authority to enforce any such restriction. tribune The local boards are authorized by statute to choose and purchase textbooks and other course materials that meet the minimum state requirements. The current Cobb county board has given up some of their statutory flexibility in choosing. While that might be okay for the current board since I presume they voted to do it I don't see how they can possibly give up the statutory right in perpetuity. The next school board can simply say "we didn't sign this consent and we hereby repeal it and reclaim our statutory rights under the Georgia constitution". Is that about right? DaveScot

dopdebeck Suck it up yourself, Opderbeck. If you were all that much you wouldn't be spending your time arguing with a layman about the law. Why aren't you arguing before like the Supreme Court or something? I think we both know why. DaveScot

Larry said: If school boards can enter into consent agreements that are binding on their successors, then why can’t Congress, presidents, governors, state legislatures, etc. do the same thing? They can Larry. Treaties, procurement contracts, executive agreements, etc., come immediately to mind. You wouldn't argue that Congress is free every election cycle to break every long-term military procurement contract, for example, would you? Or that the settlement agreement in every case an individual settles with the federal government is subject to re-review by each newly elected Congress? If you think about this for a moment, I think you'll see that this is not how things can or do work. Of course, "binding" never means "unbreakable under any circumstances." If that's you're point, I don't disagree. As I mentioned above, even a court order can be rescinded under some circumstances, but those are usually pretty extraordinary. Tribune: Rather than nitpicking, it would be nice to see you make some suggestions about how to rectify things. I'm the one being nitpicked! Look at my initial comment way up at the top of the thread. This is an awful Consent Order. One possibility for a future board is a first amendment challenge. I've not only commented on this publicly here, I've done so on my own site and on the ASA list. But then Dave started jumping on me with overstatements and such. I responded not by nitpicking, but by trying to explain some basic principles. In that regard, all I want to say is, don't overstate, and be clear about what the very real resons for criticizing this particular Order are. I believe there is, BTW, specific statutory authority for a local school board to enter into a settlement agreement or other contract that binds sucessors. I don't have time to find it now, but at some point maybe later next week I'll try. dopderbeck

dopderbeck, your point may be that the court and the ACLU have the power to do this (i.e. the consent decree is going to stand) and that is a useful observation. But that doesn't mean this action is not very wrong. Law and justice are different, as I'm sure you know, and law trumps justice in a courtroom. Justice only loses in the end, however, if people stop fighting for it. If those who would go on to create the NAACP, an initially good and noble organization, said "the Supreme Court just said segregation is OK, I guess it's over for us" we'd still have Jim Crow. Now what is going on in Cobbs County is wrong (unjust) on a myriad of levels. Rather than nitpicking, it would be nice to see you make some suggestions about how to rectify things. tribune7

dopderbeck said (comment #26) --

"I don’t believe they have any statutory authority that extends past their own term in office." So, every time a new school board is elected, all the actions, policies, resolutions, etc. of the previous school board are immediately repealed?

No -- what was meant is that a new school board should be able to repeal what it wants to repeal. If school boards can enter into consent agreements that are binding on their successors, then why can't Congress, presidents, governors, state legislatures, etc. do the same thing? In the big controversy over whether the new Dover school board should have tried to moot the Kitzmiller case by repealing the ID policy prior to release of the decision, the Darwinists argued passionately (under the "voluntary cessation" exception to the mootness doctrine) that it was not possible to have a consent agreement that would be binding on the new board's successors. Now the Darwinists are talking out of the other side of their mouths. My blog has two articles about the Cobb County cop-out -- http://im-from-missouri.blogspot.com/2006/12/cobb-county-cops-out-caves-in-to.html http://im-from-missouri.blogspot.com/2006/12/ungrateful-cobb-county-school-board.html Larry Fafarman

But it’s the free speech part that’s the problem, not the mere fact that the board entered into a settlement that binds a later-elected board. And the coercive nature in which the decree was obtained (as opposed to say a service contract or bond issue). And the inability of a new board to change or abolish the decree as it would a statute enacted by a previous board. tribune7

I certainly understand why you’re evading it but I consider your refusal to address it as intellectual dishonesty (once again). Oh, please. Read the cases I cited. Actually read them, instead of just making stuff up. It's funny how, whenever you get hammered with actual primary authorities, you start spitting out the "dishonesty" ad hominems. Suck it up. You don't know the law here and you're dead wrong. I don’t believe they have any statutory authority that extends past their own term in office. So, every time a new school board is elected, all the actions, policies, resolutions, etc. of the previous school board are immediately repealed? This is ridiculous. What is most ridiculous about it is that we agree on the basic impropriety of the court's order. Tribune, you're not completely off base here, given the scope of the court's order as a prior restraint on speech. But it's the free speech part that's the problem, not the mere fact that the board entered into a settlement that binds a later-elected board. If you overstate your objection based on ignorance on basic principles of civil procedure and contract law, as Dave does, you lose all credibility. BTW, if you want some further precedent on school boards being bound by consent decrees despite electoral changes, check out the school desegregation cases that go back to the 1950's or so. dopderbeck

I added a link to the text of the agreement into the article. Comparisons to treaties aside, my question is what statute gives the current school board the authority to bind its successors in perpetuity? I don't believe they have any statutory authority that extends past their own term in office. If someone can point me to the source of the authority to bind its successors I will stand corrected. DaveScot

dopderbeck You have to admit that an elected (hence changeable) legislative body being bound by a consent agreement flies in the face of what we think government should be. tribune7

This isn't getting silly. It was silly from the start to even bring up treaties but let's go ahead and carry it though and treat the consent agreement as a treaty. You have, for the THIRD time (or is it the fourth or fifth, I'm losing count), ignored the point that treaties must be ratified by congress. I certainly understand why you're evading it but I consider your refusal to address it as intellectual dishonesty (once again). Status as Law

By virtue of the Constitution's supremacy clause (Article VI, clause 2) a treaty that is concluded compatibly with applicable constitutional requirements may have status as the "supreme law of the land," along with federal statutes and the Constitution itself. A treaty does not become effective as U.S. domestic law automatically, however, upon its entry into force on the international level. Instead, this occurs only where the instrument is "self-executing" and operates without any necessity for implementing legislation.

A ratified treaty isn't a contract. It becomes part of the law which is why the legislative branch must approve it. This point is really salient here because I'm accusing Cooper of legislating from the bench and your comparison to a treaty does nothing but help make that point. DaveScot

Oh, and the GM example is answered pretty easily not only by the fact that corporations are "persons" for purposes of enforcing a judgment, but also by related prudential concerns regarding invididuals in mundane cases. Say, for example, that an individual owns a piece of real estate that is subject to a claim of an easement. The court rules that the individual cannot sell the property without the easement holder's approval. Such a judgment invariably will extend to the individual's heirs and assigns; otherwise, the individual could escape it by designating an agent to sell the property without approval. Or, say an individual agrees to settle a negligence claim by agreeing to pay damages over a period of time. If the individual dies, the liability is not automatically extinguished; it extends to the person's estate. Or, say an individual settles a case concerning a non-competition agreement by agreeing not to work in a competing business for a period of one year. The individual cannot escape this agreement by engaging an agent to conduct the competing business on his behalf. Same principle as the parent - subsidiary corporation example. It's fair to say that in most cases, it's malpractice for a lawyer to agree to a settlement that fails to cover heirs and assigns as well as the individual named in the case. dopderbeck

You failed to refute any of the 5 points I made LOL! I guess that depends on the meaning of "refute." If "refute" means actually pointing to the law that shows you're wrong, I aced it. This is getting silly. dopderbeck

dopderbeck No, your civil procedure lesson hasn't quite ended yet. You failed to refute any of the 5 points I made comparing consent orders and treaties: 1) This isn’t General Motors (a corporate entity), 2) the school board doesn’t have treaty powers, 3) treaties must be ratified by congress, 4) states can’t enter into treaties, 5) and a consent agreement isn’t a treaty. Your civil procedure lesson has now ended. You flunked. Sorry about that. Reenrollment is in the spring. DaveScot

"Treaties are contracts" isn't "my" analogy Dave. It's a longstanding principle of international law. See, e.g., Santovincenzo v. Egan, 284 U.S. 30, 40 (1931) (stating "treaties are contracts between independent nations"); Iowana v. Ford Motor Co., 67 F.Supp.2d 424, 457 (D.N.J. 1999) (stating "A treaty is a contract between or among sovereign nations" and providing a thorough summary of the law of contracts as applied to treaty interpretation). True, a treaty must be ratified by Congress, but that doesn't change the fact that treaties are contracts. Like other contracts, treaties can bind successors in interest. There is also, BTW, an extensive body of case law emphasizing the point that treaties remain binding unless expressly abrogated, and spelling out the circumstances under which a treaty can be abrogated. Interestingly, the circumstances that permit abrogation of a treaty in many ways paralell the circumstances that might allow a party to seek later modification of an existing court order, including a consent decree. As to checks and balances, there are several such mechanisms relating to a consent order. First and most importantly, a consent order is entered into by consent. A party is not required to agree. Equally important, the rules permit a party to petition for modification of a court order if circumstances warrant it. Further, a person who was not a party to the original action can challenge an order that purports to bind him or her on various grounds, including constitutional grounds. On so on. Thus endeth today's civil procedure 101 lesson. dopderbeck

I believe you must find a way to declare unconstitutional the fact that the law is trying to declare what is scientific and what is not, what is a valid theory and what is not, and of course, it's also unconstitutional to defend a theory by law! Sladjo

dopderbeck I can hardly believe you bothered to try defending your analogy of contracts and treaties. That was so badly flawed it almost made me question whether you'd ever read the constitution. Treaties must be ratified by Congress, a point you missed twice now. Do you need me to quote the constitution for you? It's an important point as it demonstrates the checks and balances built into the constitution and illustrates what Judge Cooper didn't do when he legislated from the bench a law prohibiting criticism of evolution in any Cobb County school. Common law doesn't override statutory law. Disputes under contract common law should be the jurisdiction of state courts. Cooper retained jurisdiction because he didn't want a court that might dispute his opinion to get involved. That was improper. Cooper's appropriate jurisprudence ended where the constitution ends and in this case that's the establisment clause, a violation of which was plaintiffs' cause of action. I wonder if Cooper ever actually read the constitution. A federal judge is just a lawyer who knew a senator. Too bad there's no competency test for federal judges. They should be required to take one every three years like renewing a driver's license. If there were such a test I suspect Cooper would fail it and he'd have to fall back on earning a living through his miraculous passing of the bar exam in the distant past in whatever state was unlucky enough to have given him a license to practice law. The bottom line here is the Cobb County school board wanted to put this to bed in the least costly manner possible. To accomplish that they entered into a consent agreement which gave up legislative authority of future legislators which they have absolutely no authority to do. Adding insult to injury Cooper happily accepted this disposition, almost certainly knowing at least some of the terms were bogus, and in an effort to enforce the unenforceable ruled that only his court could hold future jurisdiction over the consent contract. Cooper should be impeached. DaveScot

It would thus appear, that amongst all the other flaws in Cooper’s order, is that his court has no jurisdiction in enforcing common law of contracts in the State of Georgia (or anywhere else for that matter). , Um, no, that would not be correct. Federal courts can enforce common law contracts under diversity jurisdiction, and further can enforce settlement agreements incorporated into federal court orders even if the parties are non-diverse. That's pretty well settled law. You're misreading Eerie, BTW. There is no general federal common law. There is, however, federal common law in areas in which federal courts have original jurisdiction, such as admiralty, antitrust, copyright, patent, etc. In fact, on the same day that it decided Eerie, the Court issued another decision based on fedearl common law. Further, under the Supreme Court's holding in Clearfield Trust, federal courts can make common law where there is a particular "federal competence" to do so. Of course, state courts also make common law, which isn't properly called "legislating from the bench," and state courts also sometimes make what is effectively federal common law. (Interesting article here.) This isn’t General Motors (a corporate entity), the school board doesn’t have treaty powers, treaties must be ratified by congress, states can’t enter into treaties, and a consent agreement isn’t a treaty. But of course a corporation is simply a "person" for purposes of the right to sue and be sued, and can have "heirs, successors and assigns" like a natural person; and treaties are contracts which can bind successors in interest, just like any other contract, including a settlement agreement . That part is not novel; it's as old as the law of contracts. There's no need to overstate things here. It's a bad Consent Order, without adding all this other stuff. dopderbeck

dopderbeck U.S. Federal Judges can make common law? Maybe you can point me to the bit in the constitution authorizing this. In the meantime, read this: Erie Railroad Co. v. Tompkins

Therefore, the Court felt it was time to overrule the doctrine of Swift as an unconstitutional extension of its own powers. Swift had stolen powers reserved to the states in violation of the Tenth Amendment - nothing in the Constitution of the United States permits the U.S. Congress to empower federal courts to create their own common law - and had denied state residents the equal protection of the laws, but not under the Fourteenth Amendment because the Fourteenth Amendment at that time only applied to states and not the federal courts. Therefore, the federal court was required to apply the law of whichever state it was sitting in, as though it were a state court of that state. Of course, this was a very difficult decision for the Court because overruling Swift meant that a huge number of opinions by the lower federal courts were no longer valid law.

"There is no federal general common law"

Because Swift v. Tyson unfairly allowed the result of litigation conducted in state court under state common law to differ materially if the suit were litigated under general law principles in federal court, it allowed "grave discrimination" and encouraged "forum shopping," which had grown up in response to the Swift rule. Instead of promoting uniformity, the general law approach produced the opposite. Except as provided by the Constitution and Acts of Congress, state law applies. There is no federal general common law because no clause in the Constitution confers such a power on federal courts.

It would thus appear, that amongst all the other flaws in Cooper's order, is that his court has no jurisdiction in enforcing common law of contracts in the State of Georgia (or anywhere else for that matter). DaveScot

dopderbeck This isn't General Motors (a corporate entity), the school board doesn't have treaty powers, treaties must be ratified by congress, states can't enter into treaties, and a consent agreement isn't a treaty. Try again. In the meantime, read this: Impeachment of Federal Judges DaveScot

If George W. Bush signs a consent agreement that prohibits any presidential successor from doing something you’re going to sit there and tell me its binding on all future presidents? That’s nonsense. Yes. It's called a "treaty." Presidents do it all the time. Treaties are, fundamentally, contracts. There's nothing unusual about a settlement agreement binding successors, assigns, etc. You couldn't settle a case otherwise. Say General Motors settles a product liability case involving a recall of defective tires. GM can't get out of that deal by incorporating a new subsidiary and claiming the sub isn't bound by the settlement. That’s called legislating from the bench. Legislating from the bench is, I think, one of those terms that often sheds more heat than light. Judges can legitimately make common law, for example. What judges shouldn't do is contravene the clear intention of the legislature. I don't think that happened in the Cobb County settlement. There isn't any legislation that would prohibit a judge from accepting a settlment agreement; in fact, the rules of federal procedure specifically authorize judges to do so. But this is a quibble. We agree, fundamentally, that this particular Consent Order is very bad. dopderbeck

dopderbeck Excuse me for asking but how can "contract law" bind elected officials not yet elected? If George W. Bush signs a consent agreement that prohibits any presidential successor from doing something you're going to sit there and tell me its binding on all future presidents? That's nonsense. What is unusual and troubling is that this court purports to enjoin the actions of a future duly elected school board concerning any speech that “disparages” the theory of evolution. That’s an extraordinary prior restraint, and probably is itself unconstitutional under the first amendment’s free speech clause. It's not unusual but you bet it's "troubling". Judge Cooper effectively made a law (and a punishment for breaking it) that prohibits future elected officials from doing something. That's called legislating from the bench. What we need are some legislators and executives to tell these activist judges to go fly a kite. The judiciary is powerless without consent from the legislature and enforcement by the executive. These are the checks and balances behind the tricameral form of our gov't. When one branch exceeds its authority, upsetting the balance of power, it's up to the others to assert themselves to check the usurper. If the usurper refuses to back down it's a constitutional crisis. Judges routinely approve such consent orders without much substantive review. When they approve of unenforceable nonsense like this they should be impeached for incompetence. DaveScot

[...] UD: Where Science Fails, Financial Intimidation Wins has another view of the Cobb county sticker case. Behind all the indignant shouting from the Darwin/science groups, the plain fact is that dissent is being suppressed. The “science” of evolution wilts under the mildest of criticism so its heroic defenders resort to legal chicanery to shelter it. Evolution pundits see the Cobb county disposition as a win for science. When “science” has to be shielded from criticism through courtroom theatrics and financial intimidation it’s no win for science. It’s no longer science at that point. It’s indefensible dogma; a sham pretending to be science. This is a sad time for science. [...] Darwiniana » Cobb county case

Ok, though I think this is a very bad Consent Order, I can't pick up on the "legislating from the bench" theme. It's a Consent order as part of a settlement. Judges routinely approve such consent orders without much substantive review. The school board is just as culpable for agreeing to it. I'm curious whether the membership of the school board changed while the case was on appeal. I also want to clarify that I don't adhere to the "constitutional crisis" line of thinking. There are, I believe, serious problems with certain lines of U.S. constitutional jurisprudence, including establishment clause jurisprudence. However, I don't think it's warranted or wise to use "crisis" rhetoric. Re: the court retaining jurisdiction to enforce the order -- that in itself is appropriate and standard. It isn't a usurpation of the executive function. A court's orders are enforceable by the court through contempt sanctions. The reason a court expressly retains jurisdiction over a consent order that is entered as part of a settlement is that a settlement is also a contract between the settling parties. Contracts are enforceable under state contract law. When the court retains jurisdiction, it makes clear that an action for enforcement is to be had in the court that entered the original order, not through a separate action in state court. Nothing unusual there. What is unusual and troubling is that this court purports to enjoin the actions of a future duly elected school board concerning any speech that "disparages" the theory of evolution. That's an extraordinary prior restraint, and probably is itself unconstitutional under the first amendment's free speech clause. dopderbeck

I am not a fan of the ruling as I do not see how you can interpret that sticker as a government endorsement of religion. The only reasoning I can think of is that there is a long history of confrontation with Darwinism from conservative Christians, there is not at this moment a credible scientific controversy over Darwinism, so it is safe to say that this criticism is primarily if not solely religiously motivated by conservative Christians. Now one may think that is indeed the truth, but any responsible citizen has to admit that is frightingly loose reasoning from a court. jmcd

dopderbeck Interestingly, aside from an attempt to muzzle in perpetuity a duly elected legislative body the judge also seems to be usurping the enforcement powers of the executive branch; The trial court retains perpetual jurisdiction to enforce these provisions. If the school board had any cajones they'd tell Cooper to go fly a kite, put the stickers back, and see if Cooper can convince Governor Perdue to call out the state militia to enforce his ruling. This is of course presuming Judge Cooper doesn't have a private police force under his command. A constitutional crisis is brewing, David. The judiciary is overstepping its bounds. DaveScot

dopderbeck Welcome to the world of legislation from the bench. Please leave all ballots and other forms of government by and for the people at the door as you enter then sit down, shut up, and do as you're told. DaveScot

The Consent Order settling this case is particularly disturbing because of the gag order it imposes. For example, paragraph 2(a) of the order enjoins the school board and its agents, employees, and successors from "making any disclaimers regarding evolution orally, in writing, or by any other means." Paragraph 3 of the Order states that it is binding on the school board "and its officers and members in perpetuity, notwithstanding any changes to the Board's membership that may result from further elections, appointments, vacancies, or other changes to the Board or its composition." The trial court retains perpetual jurisdiction to enforce these provisions. If this broad language is interpreted literally, depending on what "disclaimers" means in Paragraph 2(a), no teacher in Cobb County can ever criticize the theory of evolution in any way, nor can the citizens of Cobb County vote to adopt a policy that would allow teachers to criticize the theory of evolution in any way, even in a philosophy or history class. Regardless of what one thinks about ID generally, this particular settlement is a victory neither for science nor democracy. dopderbeck

The stickers were a government establishment of religion. Isn't it made clear by the text of the sticker? DaveScot

I don't see what was wrong with the stickers. What if it said the same about any other theory? Did ACLU argue it was implying ID? And if so, does ID equal state endorsement of a religion? Collin

What is not reported in the press is that it is possible the influx of affluent pro-ID families and their influence in Cobb county sent the SAT scores into record territory for Georgia. The stickers were evidence the parents were deeply interested in their children's education. It was because of the public schools in Cobb county that affluent and educated pro-ID families were flocking there. In fact, since the sticker's introduction, the SAT scores went up. Thus it's hard to prove criticism of Darwinism affects a childs ability to think and learn. scordova

But DaveScot, wasn't that the main point in "Kitzmiller v. The Dover SB"? That being if you want to challenge evolution you had better have deep pockets (filled with $$$, of course). And with an established history of judicial anti-ID bias already against them, it makes that financial intimidation a likely reality. I need to get elected to a school board... Joseph

Check this out regarding the ACLU: http://www.amazon.com/gp/reader/0805440453/ref=sib_fs_top/002-1107273-5978401?ie=UTF8&p=S00J&checkSum=ldFnOBz7oMUfpBQvyzDcYwTsDZCpFMAdtlrbK6F%2BJBg%3D#reader-link Ekstasis