I usually don't discuss the most high-profile cases, if only because I generally prefer to talk about overlooked principles rather than add yet another voice to the overcrowded discourse surrounding the rare case in which the public (or lawyers writ large) become interested. But I wanted to talk about this one, if only briefly, even though it's a case with popular interest given the celebrity status of the movant, Der Unabomber.
On the merits, my view is that Judge Hawkins correctly decides that Kaczynski's effects should be auctioned off and the proceeds paid to his victims rather than, as the government contends, left to rot in a government warehouse with only a token (or no) payment by the United States. An auction is the Pareto optimal solution, I think. Whereas the government's position (and what it's in fact been doing over past several years) benefits no one. Sure, maybe there's something that seems a bit ghoulish about, inter alia, selling Kaczynski's Manifesto to the highest bidder. But it provides a concrete benefit to real people, I'm all for it. And if the highest bidder wants to burn the Manifesto -- as one did, for example, with John Wayne Gacy's paintings of clowns -- that's fine too. The point is to give the victims their money. Now, I might have written the opinion a little bit differently than Judge Hawkins does (if only because I think that he wraps himself up in the flag a little bit too much by constantly reiterating the theme "focus on the victim" until it loses meaning by sounding like pure rhetoric). Still, we'd reach the same result.
Off the merits, I thought that footnote 12 was interesting. Judge Burrell overruled the magistrate judge in this case -- a fairly rare (but not super-extraordinary) occurrence -- to find against Kaczynski here and to hold that the government could permanently deprive him of his effects without any payment to anyone. Footnote 12 says: "Contrary to Kaczynski's suggestions, we find no proof of bias on the part of the district court," with the emphasis on "no" in the original. Why this emphasis? And why talk about "proof" of bias? Sure, it'd have been more telling if the emphasis was on "proof", as in "We find no proof of bias . . .", implying that there might well have been some indicia of bias. Still, it seemed an interesting way to phrase the footnote. Not the usual "We find no bias on the part of the district court" or the like. I'm left wondering what exactly I should make -- if anything -- of this footnote.
