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Old October 7, 2008, 04:09 PM   #1
Waitone
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Joyce Foundation Uses Law Reviews to Influence SCOTUS Decisions

Here is a post I made over at APS where it caught little attention. Its not a sexy story but it is important in my view.

Seems Obama and his cohorts have figured a way to influence the judiciary when it comes to the second amendment without having to do the court thingy. Law reviews are evidently well research and thoughtfully written all while being done on a shoe string budget. Enter stage left a well-funded leftist organization set on destroying the second amendment. The recent Heller decision whereby the pro-second amendment forces chalked up a W is instructive. We won by a skinny vote. Yet, anti-second arguments were cited 4 times in the court's dissenting opinion.

I never knew the court could be influenced by what is in essence students of law. It also sheds new light on Obama's resume where as light as it is, he emphasizes his experience as editor of Harvard law review.

http://pajamasmedia.com/blog/obama-a...ond-amendment/
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October 6, 2008 - by David T. Hardy

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As a presidential candidate, Barack Obama must demonstrate executive experience, but he remains strangely silent about his eight years (1994-2002) as a director of the Joyce Foundation, a billion dollar tax-exempt organization. He has one obvious reason: during his time as director, Joyce Foundation spent millions creating and supporting anti-gun organizations.

There is another, less known, reason.

During Obama’s tenure, the Joyce Foundation board planned and implemented a program targeting the Supreme Court. The work began five years into Obama’s directorship, when the Foundation had experience in turning its millions into anti-gun “grassroots” organizations, but none at converting cash into legal scholarship.

The plan’s objective was bold: the judicial obliteration of the Second Amendment.

Joyce’s directors found a vulnerable point. When judges cannot rely upon past decisions, they sometimes turn to law review articles. Law reviews are impartial, and famed for meticulous cite-checking. They are also produced on a shoestring. Authors of articles receive no compensation; editors are law students who work for a tiny stipend.

In 1999, midway through Obama’s tenure, the Joyce board voted to grant the Chicago-Kent Law Review $84,000, a staggering sum by law review standards. The Review promptly published an issue in which all articles attacked the individual right view of the Second Amendment.

In a breach of law review custom, Chicago-Kent let an “outsider” serve as editor; he was Carl Bogus, a faculty member of a different law school. Bogus had a unique distinction: he had been a director of Handgun Control Inc. (today’s Brady Campaign), and was on the advisory board of the Joyce-funded Violence Policy Center.

Bogus solicited only articles hostile to the individual right view of the Second Amendment, offering authors $5,000 each. But word leaked out, and Prof. Randy Barnett of Boston University volunteered to write in defense of the individual right to arms. Bogus refused to allow him to write for the review, later explaining that “sometimes a more balanced debate is best served by an unbalanced symposium.” Prof. James Lindgren, a former Chicago-Kent faculty member, remembers that when Barnett sought an explanation he “was given conflicting reasons, but the opposition of the Joyce Foundation was one that surfaced at some time.” Joyce had bought a veto power over the review’s content.

Joyce Foundation apparently believed it held this power over the entire university. Glenn Reynolds later recalled that when he and two other professors were scheduled to discuss the Second Amendment on campus, Joyce’s staffers “objected strenuously” to their being allowed to speak, protesting that Joyce Foundation was being cheated by an “‘agenda of balance’ that was inconsistent with the Symposium’s purpose.” Joyce next bought up an issue of Fordham Law Review.

The plan worked smoothly. One court, in the course of ruling that there was no individual right to arms, cited the Chicago-Kent articles eight times. Then, in 2001, a federal Court of Appeals in Texas determined that the Second Amendment was an individual right.

The Joyce Foundation board (which still included Obama) responded by expanding its attack on the Second Amendment. Its next move came when Ohio State University announced it was establishing the “Second Amendment Research Center” as a thinktank headed by anti-individual-right historian Saul Cornell. Joyce put up no less than $400,000 to bankroll its creation. The grant was awarded at the board’s December 2002 meeting, Obama’s last function as a Joyce director. In reporting the grant, the OSU magazine Making History made clear that the purpose was to influence a future Supreme Court case:

“The effort is timely: a series of test cases - based on a new wave of scholarship, a recent decision by a federal Court of Appeals in Texas, and a revised Justice Department policy-are working their way through the courts. The litigants challenge the courts’ traditional reading of the Second Amendment as a protection of the states’ right to organize militia, asserting that the Amendment confers a much broader right for individuals to own guns. The United States Supreme Court is likely to resolve the debate within the next three to five years.”

(45:17-18; online link; slow).

The Center proceeded to generate articles denying the individual right to arms. The OSU connection also gave Joyce an academic money laundry. When it decided to buy an issue of the Stanford Law and Policy Review, it had a cover. Joyce handed OSU $125,000 for that purpose; all the law review editors knew was that OSU’s Foundation granted them that breathtaking sum, and a helpful Prof. Cornell volunteered to organize the issue. (The review was later sufficiently embarassed to publish an open letter on the affair).

The Joyce directorate’s plan almost succeeded. The individual rights view won out in the Heller Supreme Court appeal, but only by 5-4. The four dissenters were persuaded in part by Joyce-funded writings, down to relying on an article which misled them on critical historical documents.

Having lost that fight, Obama now claims he always held the individual rights view of the Second Amendment, and that he “respects the constitutional rights of Americans to bear arms.” But as a Joyce director, Obama was involved in a wealthy foundation’s attempt to manipulate the Supreme Court, buy legal scholarship, and obliterate the individual right to arms.

Voters who value the Constitution should ask whether someone who was party to that plan should be nominating future Supreme Court justices.
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Last edited by Waitone; October 7, 2008 at 04:45 PM.
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Old October 7, 2008, 05:42 PM   #2
TheBluesMan
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From the article:
Quote:
When judges cannot rely upon past decisions, they sometimes turn to law review articles. Law reviews are impartial, and famed for meticulous cite-checking.
Bold by TBM.

The author spends the rest of the article showing without a doubt that many law review articles are not impartial.

In a similar vein, it is disheartening to see SCOTUS justices turning to foreign law and jurist reviews when they can't find domestic decisions that support their opinions. Although I suppose the citing of Blackstone would fall into this category, somehow it seems different considering how much our own law today is based upon English Common Law.
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Old October 7, 2008, 08:44 PM   #3
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Wow. Just.... wow!

It's not bad enough that the anti-gun side lies to Congress and the public. Now they have to fund an effort to write hit pieces against the meaning of the Constitution. Plus trample on dissenting views on college campuses. Just.. wow!

Except it would take a huge amount of time and money, it would be interesting to have many of the articles peer reviewed (or reviewed by university interns) with cite/fact checking for errors, misinterpretations, misleading out of context use and omissions of contrary decisions or dicta.

Funding might be difficult though.
Anyone have Ross Perot's phone number?
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Old October 7, 2008, 11:25 PM   #4
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Anyone remember Michael Bellesiles?

Anyone remember what it took and how long it took to get him dismissed from Emory?

Bill, that's the kind of task you are suggesting. Ross Perot, indeed.
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Old October 8, 2008, 02:32 AM   #5
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I don't remember what it took, exactly...

But I do remember it took years. And certain "sources" are still quoting his "data" as if it were verified fact, instead of the discredited information is actually is.
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Old October 8, 2008, 07:31 AM   #6
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This isn't really that new. The gun banners bought articles that supported a collective interpretation years before Obama got involved.

As for Bellesiles, he was only booted when his denials and refusal to supply supporting documentation became embarassing to Emory. If he'd handled the cover up better, Emory would have kept him on staff.

One option is to begin writing Chicago-Kent, the ABA, the newspapers, etc asking about the lower of academic standards that allowed this to happen. Attacking them based on the fraudulent interpretation of the 2nd Amendment (which they likely agree with) won't have any effect, but doing so based on the fraud itself might.

If we have any prospective law students who are willing to tell the school that it's off their lists because of academic fraud, that would help.
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Old October 9, 2008, 06:27 AM   #7
Bartholomew Roberts
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Using law reviews to change or influence the development of the law is a very old practice and goes way, way back. The primary difference now is instead of this being a scholarly discussion, it is now a profession. There are institutes and funding out there where you can make a living advocating for a particular change in the law - and there are certainly institutes that are money hungry enough, sympathetic administratively, or a combination of both that they will lend their name to it.

For that matter, take a look at Sanford Levinson out of University of Texas law school. Many of you may recognize the name as his "The Embarassing Second Amendment" article was one of the key starting points on the road to Heller back in the early 1990s. Professor Levinson was also fairly liberal which gave his argument more credibility.

His latest effort comes around remaking the Supreme Court and the Constitution to suit modern times. Right now it is just the occasional law symposium on the subject; but the ABA has picked up the push to modify the Supreme Court and their most recent ABA Journal has an article discussing all the ways it might be modified to make it more "modern" (i.e. subject to popular will - which I kind of thought was the whole antithesis of what the Court was about).

The really disturbing thing about rewriting the rules of the game in the middle of the game, is that political realities are such that it would be almost impossible to do this as a bipartisan effort. In reality, it would take an overwhelming dominance of the legislative system by one party to accomplish it; but once they had it, they could rewrite the rules in a systemic fashion. Personally, I don't see a lot of good coming out of a set of rules written by one particular party - they are going to inevitably reflect that party's ideology and protect their power base rather than reflect a good balance of power.
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Old October 9, 2008, 11:26 AM   #8
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I think that one of the reasons we are so surprised by this is that we wouldn't stoop to it.

Wake up.

This is not a revolutionary war battlefield.

We're going to be shot at from the flanks, and from the rear.

We must adapt our tactics.
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Old October 9, 2008, 01:14 PM   #9
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No offense, Antipitas - but knowing academia - Bellesiles was rather quickly and decisively eliminated by our standards. The time scale may not have given immediate gratification but there are procedures and they worked. From a prize winner with cover stories on the Chronicle of Higher Education and NY Times to an individual with no tenured job and cover stories on the Chronicle and Times documenting his fraud - that's quite a fall and disgrace.

Mills of the gods , etc.
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Old October 9, 2008, 04:04 PM   #10
Al Norris
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No offense taken, Glenn. You would know better than I.
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