Thursday, August 11, 2005

Doe v. Kamehameha Schools (9th Cir. - Aug. 2, 2005)

Judge Bybee writes an important opinion worth reading in this case, which holds that Section 1981 may well prohibit a private, non-federally-funded school to adopt a blanket admission policy favoring native Hawaiians and effectively excluding non-native Hawaiians from admission. Judge Graber dissents.

From my perspective, the most interesting thing about Judge Bybee's opinion was how it is written. This is true in two different respects. First, it is much more nuanced, balanced, and careful than the polemic and partisan pieces that one might expect from him. Of course, Judge Bybee knows that this is a high-profile case, so undoubtedly took special care in crafting it. Still, I liked its style.

Second, the opinion reads much more like a legal history piece -- or law review article -- than a judicial opinion, and does much, much more than is required in explaining the history and structure of various principles than you typically see in the Federal Reporter. Now, I happen to like that approach, and find it to result in a more interesting read than a classic majority opinion. I'm also no good at it, mind you, so am especially impressed by those with facility in this area.

But others might have a different reaction. In any event, the opinion made me want to know the identity of the law clerk responsible for writing it, as well as how much of the structure/content was penned by Judge Bybee and how much by the clerk. Given the divergence between this opinion and some others by Judge Bybee, I wouldn't at all be surprised to see a very smart -- and hard-working -- clerk behind the first draft. Of course, Judge Bybee signs off on (and is responsible for) the final product, so any craftsmanship credit would need to flow his way. But the clerk almost assuredly deserves props as well.