Thurgood Marshall’s 1930s world formed by the separate but equal doctrine, and Perry Mason’s fictional 1930s world in which lawyer ethics were still optional, seem very strange. What will our world seem like in 80 years?
The ABA’s report said that if a President thinks a law contains unconstitutional language, he shouldn’t sign it. To me, that is Ivory Tower impracticality. Take the 2011 Appropriations Act; if Obama hadn’t signed it, the government would have shut down. Would it have been remotely responsible for Obama to have done that? Such purity would make government impossible. Signing statements are actually a good alternative to such chaos. The President asserts non-aquiescence, government moves on, and the courts can sort the matter out if they need to.
Standing by itself, the growing unavailability of summary judgment might tend to increase, not decrease, the number of trials, but it is coupled with another development that leads the other way, what I call “mediation hell.”