On preserving the status quo ante: the CLR Board published a statement saying it had temporarily taking down the CLR website to preserve the status quo while they worked out some kind of compromise with what seem to be internal factions on the review. /1
The problem is that in many cases you can't preserve the status quo ante. This is a well known remedies problem. If you take down the website, well, the website isn't up and it was befoee. If you keep it up, well, you've published the piece. /2
There's a very famous case I sometimes teach in remedies about a pregnant Jehova's Witness who is admitted to the hospital, if she doesn't get a blood transfusion she will die but her religion prohibits it. The hospital goes to court, to 'preserve the status quo' .../3
Which is to say, keeping her alive. But of course in the status quo ante she has also not had a blood transfusion. Whatever the judge does: grant the emergency order or deny it, the status quo will change. /4
What more is there to say about this? Easy for me sitting on the sidelines and under no pressure, but if possible it makes sense to stick to first principles in light of the fact that any decision will be a decision, not a mere placeholder /6
Something similar happened in the Pentagon Papers case. A former colleague who clerked for Justice White said that although the first case was about the NYT, soon they saw they'd be dealing with actions all around the country /7
