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Michael Duff

Steve, Lag issues are interesting. There are many legal environments (especially given the interminable implementation delays in the administrative state) in which the answer to a legal problem is obvious in the sense that precedent would undoubtedly lead to a particular outcome but events on the ground have shifted since then. When I was a practicing labor lawyer, for example, I was involved in numerous cases in which my position was completely "right" under existing precedent that was a couple of decades old. Then we had legislative/administrative gridlock and ossification leaving us with law that we knew the existing judiciary and maybe even the public were implacably hostile to (the NLRB's recent Boeing debacle is a great, recent example). The effect of this "lag" is to inject a layer of uncertainty for practicing lawyers. Once can say, "Don't challenge - settle! You never know what rule you will wind up with." Alternatively, one can say, "Challenge! Even if we lose- everything will be out in the open, and we can move to politics." When I was a younger litigator, I chose course 2 whenever possible. Now that I have less and greyer hair I have a deeper appreciation for the pain potentially associated with a bad, bright line rule. (Though I'm still more aggressive than most, no doubt).

Steve Shiffrin

Thanks for the comment, Michael.
Perhaps I am risk averse, but this seems to me to be a case crying
out for settlement. The challengers face a hostile Supreme Court
and, on the other side, it would cost a lot of money for the
legislature to be vindicated, money that could surely be better
spent elsewhere. One of the problems with strategy two in some
contexts is that the legal outcome frames the politics in a
direction consonant with the legal outcome. Of course, the legal
outcome can also spur a negative backlash. 8/9/2012 12:37 PM,

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