After dinner this evening, I did a bit of research into the publications of Todd Butler, President Trump's latest nominee to the Fifth Circuit.
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I → do → Circuit
Despite serving in private practice for nearly two decades, Butler has published several articles.
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Butler → serve → articles
He has also served as an Adjunct Professor at the University of Mississippi Law School.
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He → serve → School
(I am not sure what he taught).
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he → teach → what
Here are some of his publications:
- A Matter of Positivism: Evaluating the Legal Philosophy of Justice Antonin Scalia Under the Framework Set Forth by H.L.A. Hart, 12 HOLY CROSS J.L. & PUB. POL'Y 47, 64 (2008).
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Matter → evaluate → Hart
- RECIPE FOR DISASTER: ANALYZING THE INTERPLAY BETWEEN THE CASTLE DOCTRINE AND THE KNOCK-AND-ANNOUNCE RULE AFTER HUDSON V. MICHIGAN, 27 Miss. C. L. Rev. 435 (2008).
- HECK, EXCESSIVE FORCE, AND THE FIFTH CIRCUIT, 29 Miss. C. L. Rev. 529 (2009)
- FOREWORD: CELEBRATING THE LIFE AND LEGACY OF THURGOOD MARSHALL, 27 Miss. C. L. Rev. 289 (2008)
- JUDGE SOUTHWICK THE OPINION WRITER, 37 Miss. C. L. Rev. 43 (2018)
- AN INTERVIEW WITH CHIEF JUDGE SHARION AYCOCK, 39 Miss. C. L. Rev. 413 (2021)
I haven't studied the articles carefully, but one through line seems to be a criticism of Justice Scalia.
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one → analyze → Scalia
For example, in his student note, Butler favors Justice Breyer's dissent over Justice Scalia's majority opinion in Hudson v. Michigan:
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Butler → favor → Michigan
While Justice Scalia applied the Fourth Amendment balancing test by starting with social costs, Justice Breyer turned first to deterrence.
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Breyer → apply → deterrence
Considering factors such as time, recoverable damages and money spent on litigation, Justice Breyer argued that § 1983 suits are an insufficient deterrence.
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suits → consider → litigation
Also, he swiftly dismissed the notion that "better trained police" provide adequate deterrence.. . . .
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police → dismiss → deterrence
Justice Breyer's dissenting opinion in Hudson v. Michigan aptly noted that "the Court destroy[ed] the strongest legal incentive to comply with the Constitution's knock-and-announce requirement" when it refused to remedy the violation with the exclusionary rule.161
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it → dissent → rule.161
Justice Scalia offered several deterrent substitutes, each is insufficient to ensure law enforcement compliance.
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each → offer → compliance
Likewise, internal police procedures are inadequate to deter non-compliance with the knock-and-announce rule.
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procedures → deter → rule
Although Justice Scalia came to the opposite conclusion after noting the "increasing professionalism" of police officers,he failed to discern the principle reason why this increasing professionalism actually exists.
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professionalism → come → reason
As one commentator noted, "the increasing professionalism of police departments that has resulted in more effective internal discipline was itself a result of the exclusionary rule.
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that → note → rule
"It follows that if the underpinning is removed, the increasing professionalism will also disappear.
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professionalism → follow → ?
Importantly, critics insist that the Castle Doctrine creates a "trigger-happy" mentality in citizens' minds.
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Doctrine → insist → minds
The laws receive extensive media coverage and the phrase "shoot first, ask questions later" is often used to describe the Castle Doctrine.
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phrase → receive → Doctrine
One commentator noted that "[the doctrine] sends a very confusing message to the citizens . . . about when they can use lethal force with impunity.". . .
The Supreme Court's decision in Hudson v. Michigan will bolster violent encounters between police officers and homeowners.
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decision → note → officers
Although none of the Justices referenced the Castle Doctrine in their opinions, the importance of the doctrine is implicit when considering the practical effects of the case.
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importance → reference → case
By removing the incentive to comply with the knock-and-announce rule, the Court left homeowners vulnerable to surprise encounters with law enforcement officers.
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Court → remove → officers
This vulnerability poses significant problems for both police officers and citizens because of the trigger-happy mindset created by the Castle Doctrine.
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vulnerability → pose → Doctrine
Thirty-five states currently remain "Castle Doctrine Free."
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states → remain → ?
Legislators in these states should be wary of the Hudson decision because of the prediction set forth in this Note.
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Legislators → set → Note
Instead of falling victim to powerful lobbying efforts, legislators should opt to protect human life by declining to provide citizens with a "shoot first, ask questions later" mentality.
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legislators → fall → mentality
Citizens in current Castle Doctrine states may soon wish their lawmakers had done the same.
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lawmakers → wish → same
Butler does not mention Heller or the Second Amendment anywhere in his note.
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Butler → mention → note
I suspect that most conservatives favor a broad application of the castle doctrine, and do not describe those exercising their right of self-defense as "trigger-happy."
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conservatives → suspect → defense
Butler's article in the Holy Cross Law Review argues that Justice Scalia is a positivist.
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Scalia → argue → Review
Here, he seems critical of Scalia's "relentless focus on history and tradition."
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he → seem → history
And he at least seems receptive to Justice Brennan's view.
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he → seem → view
Throughout his entire opinion Justice Scalia relentlessly focused on history and tradition.
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Scalia → focus → history
His attempt to define "liberty" with the use of historical facts reveals his positivistic philosophy and his acceptance of a fixed constitutional meaning.
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attempt → define → meaning
As noted above, Justice Scalia searched the common law and found that family preservation had traditionally trumped the parental rights of unmarried fathers.
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preservation → note → fathers
The essence of his search is akin to the positivistic approach of employing the rule of recognition by looking to social facts and conventions.
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essence → employ → facts
The battle between Justice Scalia and Justice Brennan over the meaning of the word "liberty" reveals the answer to the above-mentioned question.
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battle → reveal → question
Simply put, it is delusional to aspire for unanimity among all decision makers.
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it → put → makers
Our society, although pluralistic, gives credence to majority views.
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society → give → views
In doing so, we accept a legal system that is predictable, albeit imperfect.
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that → do → system
Butler repeats the charge that Scalia is "anti-gay"
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Scalia → repeat → charge
…and 45 more, not listed.
The Aporia
