Law profs fail to get facts straight

Glenn Greenwald continues to be my "go-to guy" on the many and varied legal issues that dog GWB's presidency. He's written another gem today from which I quote liberally (how else :-) below on the furor surrounding the illegal NSA eavesdropping decision. While there has been much criticism of the decision and the judge (surprise!) from Bush's apologists, Glenn predicts that:

At the rate things are going, Judge Anna Diggs Taylor is going to be due a serious apology some time soon, if she isn't due one already.

It appears that some of the most widely quoted law professors [Kerr, Althouse below] have been bloviating without having their facts straight (who woulda thunk it?). One of their most frequent complaints (and egregious gaffes) has been to fuss over the judge's use of the word "undisputed". Glenn is his delightfully reasonable, lucid, informed prose puts them straight.

... the reason she repeatedly said that certain propositions were "undisputed," is because the Bush administration either failed or chose not to dispute them.

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... the Bush administration's refusal to address the merits of the claims (which is part and parcel of its general contempt for the role of the courts in scrutinizing its conduct) meant that Judge Taylor was not only entitled, but was required by the Rules of Civil Procedure (Rule 56), to treat the ACLU's factual claims as undisputed for purposes of deciding the motion.

But plainly, Kerr -- when issuing his widely cited condemnations of the court's ruling -- had no idea (a) that any of this (meaning the case's procedural history) had happened and (b) that on a Motion for Summary Judgment (which is what the ACLU filed and the court decided), the most basic rule is that any fact that one party fails to dispute (with evidence) shall be deemed "undisputed."

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But far from being "bizarre," this proposition -- that facts which a party fails (for whatever reasons) to dispute on Summary Judgment are deemed "undisputed" by the court -- is one of the most basic principles of civil litigation in the federal courts, as any federal court litigator would know. Someone (such as Kerr) who is unaware of those rules might find it "bizarre" that the court repeatedly labeled as "undisputed" facts and propositions which Kerr himself might want to dispute, but given the DoJ's failure to dispute these propositions, the court was required to treat them as such. How can someone who is (a) unfamiliar with the case itself and (b) unfamiliar with the rules governing the key issues before the court be cited as the preeminent expert to opine that the court's opinion is so flawed?

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In other words, Kerr's critique (which Althouse endorsed) of the court's opinion is just wrong -- factually wrong. The court directed the DoJ to address the substance of the claims and the DoJ simply failed and/or refused to do so -- facts which neither Kerr nor Althouse even knew when attacking the court's opinion. And there is nothing "arguable" about it -- if one party moves for Summary Judgment and presents competent evidence supporting its factual claims (as the ACLU indisputably did here), and the other party fails to dispute those facts with competent evidence (as the DoJ indisputably did here), then those facts are "undisputed," by definition.

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It is true that there are parts of Judge Taylor's opinion which are surprisingly conclusory, but that does not necessarily make it flawed. It is amazing to watch virtually everyone who is trying to attack her opinion do so by making arguments which the DoJ never made in the case before her. A basic familiarity with this case and with the rules of civil procedure -- both of which many of her critics clearly lacked -- would reveal that Judge Taylor's opinion was infinitely more sound than the conventional wisdom (thanks to many of these law professors) now holds that it was.

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UPDATE: Add Law Professor Geoffrey Stone, former Dean of the University of Chicago Law School and current constitutional law expert, to the list of admirers of Judge Taylor's opinion. Professor Stone says that he is "confident Judge Taylor reached the right result as a matter of law" (emphasis added; h/t Mona), and that it took "a good deal of courage for a judge to hold unlawful a program that the President of the United States maintains is essential to the national security."

It certainly did -- far more courage than almost anyone else has shown (in the Congress, the courts or the media) in the face of the administration's endless exploitation of terrorism to claim virtually unlimited power. It looks as though the little conventional wisdom claim that "All of the High Scholarly Distinguished Priests of Legal Wisdom Agree that this Decision is Undignified and Distasteful" is going to have to be re-written. Some public recanting is in order.