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July 26, 2016

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Doug Richmond

So, do you think Alschuler has violated Model Rule 8.2(a) by making statements with reckless disregard for their truth or falsity concerning Judge Easterbrook's integrity?

Steve L.

I expect that he is prepared to defend the truth of his statements.

Do you think MR 8.2(a) is constitutional as applied to criticism of a decision?

Doug Richmond

Like it or not, there is ample case law holding that Rule 8.2(a) is constitutional. In any event, having read the article, I doubt that a disciplinary authority could prove that Alschuler violated Rule 8.2(a).

Jason Yackee

I teach Easterbrook's opinion in ProCD (enforceability of click-wrap/shrink-wrap contracts), and am always careful to point out to the students Easterbrook's, lets call it, 'mistaken' version of some of the underlying facts, as well as the arrogant and dismissive tone that he takes in overturning the well-respected district judge, and his rather casual legal reasoning in the case. I'm not an expert on his jurisprudence, but what Aschuler describes is certainly not discordant with my single-case impression of the level of care that he seems to take in mastering the underlying record and of crafting persuasively (and legally as perhaps opposed to policy-) reasoned holdings. I wonder if those of you that teach his cases in other subjects have had a similar reaction/experience? I had assumed that Easterbrook was well-known for playing things fast-and-loose.

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