tag:blogger.com,1999:blog-5764290.post5305758150174395521..comments2024-03-22T08:01:16.236-04:00Comments on Rebecca Tushnet's 43(B)log: Initial comments on 1201: fixing what's brokenUnknownnoreply@blogger.comBlogger3125tag:blogger.com,1999:blog-5764290.post-61265011920003260152016-03-07T14:10:09.730-05:002016-03-07T14:10:09.730-05:00I agree it's not the expected result of opinio...I agree it's not the expected result of opinions on process following success on the merits (although I think there's literature that complicates that, concerning whether litigants think their concerns are being heard). I think what's driving it here though is that the debate over exemptions takes place in a larger framework of continuing debate over the normative desirability of the existence (rather than mere extent) of the underlying law, which I think you don't get in most other circumstances. Those concerns are outside the purview of the process, so if I'm remembering the "procedural fairness" literature correctly, it would make perfect sense that even winners would report the process to be broken.Bruce Boydenhttps://www.blogger.com/profile/02247768315353108904noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-28166985429088082112016-03-07T13:19:14.370-05:002016-03-07T13:19:14.370-05:00Well, that depends on what you think of the propon...Well, that depends on what you think of the proponents, I'd say. And it does contrast with the usual pattern, either with administrative agencies or with courts, where winners generally declare themselves happy with the entity that has ruled in their favor after dealing with a legislatively imposed framework.RThttps://www.blogger.com/profile/00850241338827117087noreply@blogger.comtag:blogger.com,1999:blog-5764290.post-82891647701083229802016-03-07T12:57:33.834-05:002016-03-07T12:57:33.834-05:00The fact that exemption proponents don't like ...The fact that exemption proponents don't like the process, while opponents do, is not really a big mystery though, right? Exemption proponents generally don't believe there should be anticircumvention rules at all. Therefore any process for an exemption would be an undue burden. Opponents generally think there should be anticircumvention rules, and probably believe there would be more pressure to get rid of the whole thing without the exemption proceedings. So a process requiring a detailed showing to grant limited exceptions to those rules is not an undue burden, even when they lose. I'm not sure you can conclude anything at all about how well the process is working from how those selecting to become participants regard it.Bruce Boydenhttps://www.blogger.com/profile/02247768315353108904noreply@blogger.com