Tuesday, July 01, 2014
Georgia Law Review Symposium on NYT v. Sullivan
The Georgia Law Review held a fine symposium on the fiftieth anniversary of New York Times v. Sullivan, titled "The Press and the Constitution 50 Years After New York Times v. Sullivan." I was sorry not to be there in person but delighted to contribute to it. The issue is now out; alas, I don't think the articles are available on the Law Review's website, but they should be on the usual databases shortly. (Another, equally superb symposium was also published in another law journal; both feature valuable contributions by Sonja West of the University of Georgia.)
Friday, June 20, 2014
Weekend Reading: Driver, Reactionary Rhetoric and Liberal Legal Academia
Justin Driver has an excellent paper by that title in the new issue of the Yale Law Journal, which is an excellent issue devoted to Bruce Ackerman's new We the People book. Here's the abstract:
As celebrations mark the fiftieth anniversary of the Civil Rights Act of 1964, it is essential to recover the arguments mainstream critics made in opposing what has become a sacrosanct piece of legislation. Prominent legal scholarship now appears to misapprehend the nature of that mainstream opposition, contending it assumed more aggressive forms than it actually did. Upon examining the actual arguments respected figures wielded against the Civil Rights Act during the 1960s, certain patterns of argumentation become almost immediately apparent. Mainstream critics consistently opposed the legislation not by challenging it head on, but instead by employing three standard arguments that Professor Albert O. Hirschman’s The Rhetoric of Reaction identified as sounding variously in perversity, futility, and jeopardy. In addition to demonstrating how Hirschman’s taxonomy illuminates mainstream opposition to the Civil Rights Act, this essay proceeds to argue that modern legal academia accords The Rhetoric of Reaction inadequate attention. That is so because the forms of argument Hirschman explored now frequently appear in what would initially seem an improbable place: the scholarship of liberal constitutional law professors. Left-leaning legal scholars often propose revised assessments of high-profile Supreme Court opinions, asserting that—properly understood—those opinions have had perverse effects, ended up being futile, or jeopardized some larger achievement. Legal scholars also deploy such reactionary rhetoric prospectively, warning about the dangers that they assert will accompany future efforts to issue progressive judicial decisions. Given the prevalence of reactionary rhetoric among liberal law professors, it is crucial both to grapple with the reasons that may explain its current ascendance and to identify some of the undesirable consequences that could flow from its common usage.
I think it's a terrific read, although I don't necessarily agree with all of it.
It is worth noting two caveats Driver draws from Hirchsman's excellent book:1) "Reactionary rhetoric is not the exclusive province of reactionaries. To the contrary, non-reactionaries can, under particular circumstances, feel moved to advance such arguments." 2) "In addition, Hirschman noted that his examination was primarily concerned with classifying and exploring recurrent rhetorical tropes, not assessing the underlying validity of those arguments within discrete historical contexts. Hirschman understood that simply because 'an argument is used repeatedly is no proof, to be sure, that it is wrong in any particular instance.'"
Thus, reactionary rhetoric may not be limited to liberal legal academics: it may indeed, for various reasons, be a standard trope for legal academics of various stripes. And the presence of a reactionary argument does not mean that the concern expressed is necessarily wrong; moreover, given the complexity of legal and social change and the lack of agreement on what constitutes a good outcome, it will be difficult after the fact to draw strong conclusions about whether a reactionary argument was correct. Repeated evidence that the sky did not fall completely, however, offers good reason to be avoid dire predictions when making a reactionary argument. For these reasons, I think Driver is on weaker ground when he expresses concern that reliance on reactionary arguments could produce "an unduly anemic understanding of the Supreme Court’s capacity to promote social change," and on stronger ground when he argues more modestly that reactionary tropes can be "overemployed." Nevertheless, he marshals his arguments and examples well and enjoyably. I particularly enjoyed this paragraph:
A second explanation for the trend in liberal academia’s usage of reactionary rhetoric stems from the nature of the academic enterprise. Professors often establish their own scholarly agendas at least partially in response to the generation of scholars who preceded them. If the generation of liberal scholars who came of age during the Warren Court and in its immediate wake heralded the Supreme Court’s ability to refashion society, it is not especially surprising that subsequent liberal scholars would dedicate themselves to revising that received wisdom. As the scholarly pendulum regarding the Supreme Court’s efficacy began to swing in the opposite direction, reactionary rhetoric fairly cried out for usage. The perversity argument, in particular, seems almost irresistible for those possessing the sensibilities of a legal academic. Although Hirschman did not portray the perversity thesis in these terms, his explanation of its mechanics helps to capture some of perversity’s appeal for academic audiences: “This is, at first blush, a daring intellectual maneuver. The structure of the argument is admirably simple, whereas the claim being made is rather extreme.” Later, Hirschman described the perversity thesis as “[s]imple, intriguing, and devastating.” It seems difficult to imagine any three adjectives to describe an academic article that would more readily grab law review editors by their lapels.
Saturday, June 14, 2014
An Addendum on New York Times Op-Eds and Columnists
A fun post from Neil Buchanan on why he thinks the New York Times should get rid of its op-ed columnists and run a vast rotating bunch of writers instead. (It's not clear to me whether the replacements he envisions would only be experts opining on subjects ostensibly within their expertise, or whether he would also run a mix of opinionated generalists who would at least be more varied and surprising and entertaining than the existing limited stock of permanent columnists. On the former possibility, one might enjoy this short take from Mark Tushnet, along with his acknowledgment that his criticism applies especially to bloggers like us, who have some ostensible expertise in a particular area but sound off on all kinds of things.)
I'm fine with his proposal on the whole. I would add three pieces to his discussion that I don't think got much attention from him. One is a matter of the historical background that might help explain why the Times functions as it does. Columns in the Times have often served two useful internal purposes for the paper. One, they serve as a kind of negotiated golden parachute or emeritus position to ease someone out of a job like executive editor; Abe Rosenthal and Bill Keller fall into this category. Two, they have served as a way to retain a valued Times staffer, particularly one who has lost the grand sweepstakes for executive editor or some other main masthead position. Examples here include Anthony Lewis and Tom Wicker. I'm not sure this category describes any current main op-ed columnists (Maureen Dowd and Frank Rich may have been offered columns for retention purposes, but they were not leadership competitors.) It may describe some of the Taking Note and Contributing Writer columnists. These kinds of motivation were considerably responsible for the Times op-ed page taking the shape it did. The Times initially had an editorial page; the op-ed page was a relatively recent later innovation. The columnists it slowly accumulated were mostly people who insisted on a column as the price of staying at the Times rather than going elsewhere, or who were failed heirs apparent during particular moments of change at the top of the Times's masthead. (Other columnists filled a third need for the Times, which was "casting" or changing the face of the Times in response to demands for a more prominent role for African Americans, women, conservatives, and others; past examples include Bob Herbert, Anna Quindlen, and William Safire, and there is Ross Douthat in our own era.)
Second, I think Buchanan acknowledges but gives too little weight to the degree to which something closer to what he wants has already taken place on the Times's web site, although not its print version. The categories and backgrounds of opinion writers on the web site have expanded considerably. Whether these writers are much good is a separate question; certainly the Taking Note column, which basically consists of politically predictable blog posts by former reporters, is worth skipping on a daily basis. (Indeed, I assume that Buchanan's proposal would only promise more variety and less tedium on the op-ed page, not necessarily better quality.)
Third, I cannot resist taking issue with a couple of his judgments along the way. Pace Buchanan, losing Charles Blow would not be a blow. By the time he left, Frank Rich was not a loss. (I am surprised that Buchanan laments stale, predictable column writing but exempts these two.) And he's wrong about Manohla Dargis.
Tuesday, May 27, 2014
A Separate Concurrence on the Kinsley Review
There have been some heated reactions to Michael Kinsley's review of Glenn Greenwald's book. (I'm not sure there are anything other than heated reactions these days, given the nature of online commentary. I do not consider this an unqualified good.) The Times's public editor or ombudsperson, Margaret Sullivan, has written a somewhat silly commentary on the controversy, which the Times unwisely but understandably has given prominent coverage on its web site tonight. At the Volokh website, Will Baude argues that the Times was right to publish Kinsley's review, although as I read it he is saying more than that--is saying that Kinsley is substantially right.
Of course the Times had every right to run the review and should not, as Sullivan argues, have edited out the heart of its colorable argument because it might be wrong or because, as she intimates, it constituted an unpardonable assault on journalism's amour propre. But Kinsley's argument is also basically correct. In that I agree with Will. But because we take different positions on how to get there and they are relevant to a good deal of my work, I thought it was worth spelling this out. (By way of disclosure, I have not read all of Greenwald's book, but I have read the final chapter, which is the relevant chapter, and skimmed the remainder of the book.)
Whether you care much about the whole contretemps is of course your own affair. If you do or would like to, however, the key is this paragraph in Kinsley's review:
The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.
Mr. Kinsley’s central argument ignores important tenets of American governance. There clearly is a special role for the press in America’s democracy; the Founders explicitly intended the press to be a crucial check on the power of the federal government, and the United States courts have consistently backed up that role. It’s wrong to deny that role, and editors should not have allowed such a denial to stand. [I interrupt to say that this last clause is what leads me to call Sullivan's commentary silly, and to suggest that she intimates that the problem with the statement is its assault on the press's amour propre.] Mr. Kinsley’s argument is particularly strange to see advanced in the paper that heroically published the Pentagon Papers, and many of the Snowden revelations as well.
Will disagrees with Sullivan, and agrees with Kinsley, in that--like his fellow blogger Eugene Volokh--he believes that "journalists have the same constitutional rights (with the same limits) as other citizens," that the freedom of the press should be viewed in purely technological and not institutional or teleological terms. At least I think he does. He might simply mean to say that there are arguments to this effect, that they are reasonable and backed by good authority, and that it is therefore silly for Sullivan to suggest that Kinsley's argument was beyond the pale. If that's all he means, I join his opinion fully. (Although I wouldn't rely too much on the majority's discussion of the point in Citizens United, which was loosely constructed and weakly made. Eugene's article is much better than that. Still, I suppose the Supreme Court is an authority.) To the extent that he means to subscribe to this argument more fully, however, I part ways with him. And yet I come to the same conclusion he does.
Unlike Eugene, I do believe that there is an important institutional element to freedom of the press. (I discuss my views in a chapter of this book, which I continue to hawk and which would make a fine belated Memorial Day present.) It raises difficult boundary questions, to be sure (so does freedom of religion, for that matter), and its legal status tends to be as much sub-constitutional as constitutional. But I believe it's there: that there are relevant attributes and functions to the "press" and to the role of journalism, that they serve an important role in public discourse and particularly in the monitoring and checking of government power, and that they tend to receive some legal protection. (Sometimes that recognition comes less through a singling out of the press and more through the announcement of legal protections for every speaker that are nevertheless drafted very much with the press in mind and applied with special vigor in that context. Or so I have argued.)
I stress all this because, notwithstanding the different set of premises from which I am arguing, I think Kinsley's argument is still basically right. I think he could have put the point much better, and that he is knowledgeable enough to do so. But he basically gets the law--and the good sense behind the law--right. Where he is inelegant is in his description of the press not getting the "final say" over the publication of government secrets. For the most part, absent the extraordinary circumstances in which injunctive relief would be permitted, the press (or any other speaker) does get the final say in whether to publish government secrets. Where Kinsley is right is that, even under a pretty staunch institutionalist view that might accord much greater privileges to the press than we currently do, of course the press does not get some absolute right to publish government secrets "with no legal consequences"--a "free pass." There are good institutional reasons to take care with those consequences and not to leave the decision whether to impose them solely to the regime in power. And so we insist that the final decision is made through the legal system and with the important legal, factual, political, and constitutional restraints added to that decision through judicial review. If Kinsley meant by "the government" only the executive branch or the political branches, he would be wrong. But if we include the judicial system as well, then he is quite right that the final decision on whether press publication of government secrets will, after the fact of publication, carry legal consequences rests with "the government." Any suggestions to the contrary in Sullivan's piece are wrong. So, even if you don't share Eugene's view (or, possibly, Will's), that "freedom of the press" is about nothing more than a technology--even if, as I do, you believe the press as an institution is important and constitutionally recognized--you should still conclude that Kinsley's argument in this paragraph is basically right and that Sullivan is quite wrong.
Two shorter points. (What points wouldn't be, by now?) A minor point first. Sullivan gigs Kinsley for employing ad hominem argument. This seems wrong to me. Kinsley's discussion on this point is not an immaterial attack on something not present in the book. Much of Greenwald's book, at least in the first and last chapters, is not a technical or even substantive discussion of the information contained in the Snowden disclosures: it is a discussion of Snowden's good character, of his own moral decency and fierceness, of the sterling character of anyone who agreed with him, and of the low moral character of anyone who did not. Kinsley's criticisms were relevant not only to the tone of the book--to call Greenwald's writing in this book bombastic, as Kinsley does, is like calling the Hindenburg a wee balloon--but to its content. The irony thickens insofar as most of the negative responses to Kinsley's review are mostly rich with the sneering tone that his critics accuse Kinsley of using, although without his style. Sullivan is wrong to say Kinsley gets too personal in the review; the review is as personal as the book--correction: the memoir--requires. (I would agree, however, that Greenwald's character or bombast are irrelevant to the substance or value of the disclosures themselves. I do not expect my news to be brought to me by cherubim.)
Second, I was surprised to see some of Greenwald's supporters echo a line that appears in Kinsley's review and in Greenwald's book, in which Greenwald deplores a TV journalist for asking him about the potential legal consequences of his actions. In the book, Greenwald says that question constitutes “an extraordinary assertion” that “journalists could and should be prosecuted for doing journalism.” As an institutionalist on the question of press freedom, and as a former journalist, I might be expected to like that sentence. But it's rot. I admire its brevity; but if it can be said to mean anything at all, which I doubt, it is wrong.
Cornelia Kennedy, RIP
Cornelia Kennedy, a former judge on the United States Court of Appeals for the Sixth Circuit, died on May 12. Her obituary appeared in the New York Times a few days ago. Kennedy was, among other things, the first woman to serve as a law clerk for the DC Circuit, the first woman to serve as chief judge of a federal district court, the first woman to serve as a member of the Judicial Conference of the United States, one of the first women to be short-listed for a seat on the Supreme Court, and so on--a veritable crescendo of "firsts" and impressive achievements. A passage from the obituary reads:
Arriving at her new post in Cincinnati, Judge Kennedy was startled to be presented with a hot plate. The only previous female judge to have served on the Sixth Circuit had used it while male colleagues dined at the University Club of Cincinnati, which excluded women then.
Judge Kennedy was eventually the first woman to be admitted to the club, though she objected that it continued to refer to itself as a “gentlemen’s club” in a newsletter.
Well worth remembering. I must add that although the fault may be in my searching, I have been astounded by how little attention her death received, certainly prior to the Times obituary but since then as well, and most certainly including no mention on the many sites that I would have expected to give it at least a line of space. I hope this redresses the balance a little.
Friday, May 23, 2014
Lithwick on Scalia (and God)
Let me get the sincere if rote caveats out of the way first. I think there is lots to admire about Dahlia Lithwick: she's a great writer, funny, and I think it's very impressive that she essentially created a niche for herself in Supreme Court journalism that did not previously exist, through talent and hard work. I also like her personally, if Facebook acquaintance is any indicator. She has a new piece on Justice Scalia in the Atlantic, reviewing a new biography of Scalia by Bruce Allen Murphy. It is, as usual, well-written. But I have a substantial number of disagreements with the piece. The gist of the piece can be summarized as follows: discussing the influence of religion on decision-making is "taboo" when it comes to Supreme Court justices; we ought to do more of it. I have little problem with the second half of that statement, serious questions about the truth and application of the first half, and plenty of large and small criticisms of the specifics of her attempt. Many of them are particular to her piece, a few have more general import, and there is perhaps a larger point to my criticism, which is that there is a quality mostly missing from her piece and entirely absent from a couple of the other examples she cites. Somewhat ironically, given the recent vocabulary of liberal discussions of judging, that quality is empathy.
Lithwick's piece begins like this:
March was a hugely important month for religion and the Supreme Court, and a pivotal moment for Justice Antonin Scalia, the subject of a fat new biography. Too bad we couldn’t talk plainly about what was, and is, at stake. In a country historically averse to political debates about competing faiths, nowhere is frank discussion of religion more taboo than at the U.S. Supreme Court. “Religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company,” as Jeff Shesol, the author of a book about the New Deal Court, put it. He was speaking with NPR’s Nina Totenberg in 2010, when John Paul Stevens was looking at retirement and, for the first time in American history, there was the prospect of six Catholics, three Jews, and no Protestants on the highest court in the land—a watershed almost too “radioactive,” Totenberg remarked, even to note. And beware of venturing any further than that, as the University of Chicago Law School’s Geoffrey Stone did in a controversial 2007 blog post suggesting that the Supreme Court’s five conservatives likely derived their abortion views from Catholic doctrine: Scalia—a devout Catholic, and the current Court’s longest-serving conservative—announced a boycott of the school until Stone leaves the faculty.
I have written often before that I don't think religion ought to be a taboo subject in public discussion, in general terms or with regard to specific individuals. Like many law and religion scholars, I think religion can be a valid subject of discussion in politics and with respect to judges. I do not think legislators are precluded from considering and talking about religion in their decision-making, although I think they are limited in the outputs of their deliberation. I think a reasonable corollary of all this is that religion should be a permissible subject of discussion--and criticism--in public discourse. It is no more untoward to suggest that a judge's religion might influence his or her decision-making than to suggest that he or she is influenced by being a liberal, or a feminist, or a Republican, or a member of the affluent, well-credentialed elite. If there's a difference, it's one of degree, not of kind: criticism of that sort can be done rather poorly, and criticisms and assumptions based on religion can be done very poorly. It's ironic that Lithwick cites, with apparent approval, a blog post by Geoffrey Stone as an example of someone venturing bravely into this "radioactive" subject, because when Stone writes about these issues he generally does so quite badly. (More specifically, in my view, while there is some nuance in what he writes in the "middle" of those pieces, his introductions and conclusions are often cruder and more inflammatory than those middle sections can justify.)
To do it right does not mean avoiding direct criticism of religious beliefs: if they can permissibly serve as a basis for (non-judicial, at least) decision making, they can certainly be proper subjects for criticism. But it does require a good deal of nuance, care, self-examination, and, for lack of a better word, empathy: an attempt to appreciate the perspective of the religious individual from within and not just from without.
I think some failures along these lines are apparent in Lithwick's piece, in various ways. Some of them have to do with how the piece is framed. Framing the subject in terms of its being so "radioactive" that no one ever ventures there tends to lend to the author an air of intrepidity, inviting the reader to respond by praising the author for doing what no one else will and braving the consequences, and perhaps encouraging the reader to forgive any imperfections in the piece; after all, it's extraordinary that the dog is walking on its hind legs at all. But although the subject is controversial, it's hardly as unusual as all that. I have seen no shortage of blog posts, commentary in "news" outlets, and even law review articles discussing the subject. (Or, at least, discussing it when it comes to Catholicism; there are many fewer articles, if any, discussing how the Judaism of three members of the current Court affects or afflicts their judicial decision-making, although people have written about it in the context of long-dead Justices. Would they be applauded quite as loudly?)
Moreover, current writers are eager to point out that American Catholics' beliefs are not monolithic when it comes to things like contraception. It is unfortunate, then, that little evidence of the myriad ways in which the current Catholic Justices might differ--in their views of Catholicism, of the judicial task, and of the relation between the two--shows up in this piece or elsewhere. There's nothing wrong, again, with asking how a justice's religion influences his or her decision-making, But it will often be the case that a modest examination will answer the question "not proved." Yet the conclusions critics draw in this area are rarely so modest and, literally, unassuming. She writes, following Murphy, that "Scalia's religious self-certainty" has isolated Scalia on the Court and made him less effective at bringing together his fellow justices. A more modest examination might well conclude that Scalia has indeed isolated himself; I find his dissents of late often terribly ineffective and unnecessarily alienating. But would it require us to blame that on his "religious self-certainty," as opposed to his unquestionable self-certainty in general? Does the word "religious" add much to this conclusion?
Lithwick continues by trying to draw a connection between the general topic of Scalia and the majority's Catholicism and broader doctrinal themes: "The problem of engaging religion openly at the high court extends beyond the unspoken agreement not to talk about the justices’ religions. The Court itself has opted not to probe the intensity or validity of a plaintiff’s religious conviction, in part thanks to Scalia’s reasoning." Of course, the discussion comes around swiftly to the Hobby Lobby case:
Fast-forward to March 2014, when the Court heard arguments in another case about religious dissenters from general laws: Sebelius v. Hobby Lobby Stores, Inc.—probably the most important case of the term, and a revealing capstone in Scalia’s jurisprudential career. Nobody that day dreamed of questioning the religious beliefs of the arts-and-crafts chain’s Christian owners, who were seeking exemption from the Affordable Care Act mandate to provide insurance coverage for birth control. Certainly the justices on the left wing of the Court and the Obama administration didn’t: whatever science, medical consensus, or neutral law may say on the subject of abortion-causing drugs and devices, the government wasn’t about to challenge Hobby Lobby’s belief that particular forms of birth control cause abortions (or to note that the business, even if inadvertently, once covered the same contraceptive methods its owners abhor). Nor was Scalia, who this time—in a dramatic about-face from his 1990 position—clearly supported the religious objectors. In fact, in the course of grilling the lawyers, he blurted out what sounded like agreement with the plaintiffs’ claims that these items were abortifacients. The spectacle was enough to make one wonder, quietly: Peyote didn’t sway him, but what about his own brand of piety?
This all seems rather questionable to me. Is this really about Scalia's faith, or any other justice's? It has long been a settled part of Free Exercise jurisprudence, since well before any of the current justices served on the Court, that judges should not inquire into the validity or intensity of religious beliefs, although the sincerity of those beliefs is still open for examination. Whether it's the right approach or not, there are many reasons for it. To the extent that Lithwick is concerned about Scalia being influenced by his Catholicism, she should if anything be reassured by this rule, which prevents him from diving skeptically and clumsily into the "validity" of religious convictions held by members of minority faiths. This approach not just required by the caselaw, but by Congress as well, in cases involving RFRA or RLUIPA.
One may be skeptical about the suggestion that the government or the left wing of the Court was entirely supine on some of these questions; certainly those carrying the administration's water in public arguments over the Hobby Lobby have not been. (And, to meet a parenthetical with one of my own, if prior subsidy of contraceptive methods was inadvertent, how relevant should it be?) Nor, despite his gyrations in the field of Free Exercise, is it fair to say that Scalia showed a dramatic about-face from his 1990 position: here he is facing a statute that was specifically intended to give the Court a different set of marching orders from those he set out in 1990, and even under that case the question would remain whether existing exemptions from the contraceptive mandate rules create problems of neutrality and general applicability.
"Peyote didn't sway him, but what about his own brand of piety?" is a great sentence, but neither clause is especially warranted in the circumstances. Although I think Scalia was wrong in Smith, he didn't question the intensity or validity of those worshippers' beliefs or practices; and in the current case, we have plenty of reason to conclude that RFRA requires an exemption without inquiring uncertainly into his own Catholic piety. (And plenty of reason to conclude that any Jewish or liberal dissenting justices read RFRA and its application differently without drawing conclusions about whether, in rejecting an exemption claim on the part of Christian groups, they are moved by their own brand of Jewish or secularist or feminist piety.)
Perhaps a note on Lithwick's conclusion is warranted as well. She describes the Court as currently hearing "passionate challenges to a secular society from religious dissenters." For those of us who still disfavor the Court's decision in Smith, there is some irony here too, because for many of us the problem with Scalia's opinion in Smith is that it was, if not secularist, then certainly highly statist. More broadly, though, that description relies on a set of assumptions about ours being a "secular society" and what, exactly, that means. I would have thought, or hoped, that it was more accurate to call ours a pluralistic society, and in some official and unofficial areas an agnostic one. Even if it is a secular society, it is at best an open question whether that requires us to be inhospitable to religious accommodation, which is capable of secular as well as religious justification. That's doubly true when the accommodations regime is ordered by Congress, not the courts. We should not accept this framing too uncritically.
Sunday, May 18, 2014
One Last, Small Point About Justice Scalia's Commencement Address
It did not take long to exhaust the basic points of commentary on Justice Scalia's recent commencement address. First Amendment scholars, lulled or captured by his mistaken suggestion that every law student ought to take a First Amendment course, may, however, have missed a small point of some interest to them. Here, via Will Baude at VC, is an introductory, stage-patter-ish remark from Scalia's speech:
I have a philosophy of commencements. They are not for the benefit of the graduates, who would probably rather have their diplomas mailed to them at the beach. They are for the pleasure and satisfaction of the graduates’ families and friends, who take this occasion to observe and celebrate a significant accomplishment on the part of those whom they love. In that respect a commencement is like a wedding or baptism: the primary participants in those events would rather be elsewhere as well. Since that is the nature of a commencement, it does not much matter what the commencement speaker talks about. He can talk about whatever burr is under his saddle, so long as he does not go on too long.
Rereading this, I realized what the line about weddings and baptisms reminded me of: Scalia's concurrence in McCreary County v. ACLU. In his dissent in the companion case of Van Orden v. Perry, Justice Stevens pointed out that there are several different versions of the Decalogue, "ascribed to by different religions and even different denominations within a particular faith." Scalia, in his dissent in the McCreary County case, chimed in on both cases and was both incurious about and indifferent to Stevens's point about the varieties of Decalogue: "The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not)." One may also be reminded of the oral argument in Salazar v. Buono, in which, as Richard Schragger has written, Scalia was "aghast...when an attorney from the ACLU suggested that a cross commemmorating the war dead was offensive to Jews." ("It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect?")
What does all this have to do with the paragraph quoted above? Well, of all the examples of religious ceremonies at which the primary participant would prefer to be elsewhere, I would have thought the best example (aside from a funeral, which may be a little heavy for a commencement address), far better than a wedding--is that a good example at all?--or a baptism, is: a bris.
Thursday, May 15, 2014
Dean Baquet's Historic First
Given the particular media tastes of folks who read this blog, some may be interested in learning more about Dean Baquet, the new executive editor of the New York Times and the first African-American executive editor in the paper's history. Baquet grew up in a working-class family, living "in the back of a Creole restaurant that his father — a former postal worker with only a grade-school education — owned and operated." His first ride on an airplane came at the age of 18. He made it to Columbia but dropped out to pursue a career in journalism, winning the Pulitzer in 1988, among other achievements. Pretty well universally liked by his colleagues at the Times and elsewhere--one profile of him is titled, quite accurately, Nothing But Fans--Baquet is also well-known in the field for his stint as editor of the LA Times, where he pushed back against the publisher and was ultimately pushed out.
Much has been made in the past day of an anecdote in which Baquet punched a wall after a newsroom argument. At the risk of overanalyzing it, I was surprised that none of those discussions pointed to one potentially interesting aspect of that anecdote. As others, both scholars and journalists, have written, a traditional stereotype by which black men are often characterized and then rejected as unsuitable leaders or executives is the trope of the "angry black man." Perhaps there is a slim glimmer of hope in the fact that Baquet is and remains widely admired and respected as a collegial, hands-on editor, rather than having been relegated to the realm of stereotype and judged as presumptively "angry" or "temperamental" by this minor incident. Again, I would hardly want to draw too much from any particular anecdote; and I am not much given to punching walls myself. But I was surprised that, given the sheer volume of identity politics discussions surrounding the Times in the past day, not one of them mentioned the ways in which this anecdote might have been, but ultimately was not, viewed through the lens of a fairly typically recognized racial stereotype that often unfairly holds back or constrains black men in the workplace, for whom the slightest departure from coded workplace norms can be a heavy professional millstone. Within the profession, Baquet is one of the most popular and respected journalists of his generation. His ascension is both impressive and historic.
Tuesday, May 13, 2014
A Good--and Busy!--Hiring Year for Alabama
I had been waiting to announce all of my law school's hires until all of them were in, all the press releases issued, and so forth. I think everything is now official. It's been a busy year here!
I'm delighted to say that we have a new Dean: The University of Alabama School of Law will welcome as its dean Mark Brandon, currently Professor of Law at Vanderbilt. Mark is an accomplished scholar and teacher (coincidentally, Larry Solum today has a link to Linda McClain's glowing review of Mark's latest book); in addition to Vanderbilt, he has also taught at Princeton and Michigan. He is also, I note with pride, a graduate of and former teacher at the University of Alabama School of Law. We're delighted that he has gone so far and brought all those experiences home to us, and we look forward to working with him. He replaces Ken Randall, who served for dean as many years and was responsible for unprecedented innovations and advances in the law school. More recently, our colleague and friend Bill Brewbaker took on the fairly thankless job of interim dean, and did a wonderful job. I would be remiss if I failed to acknowledge the hard work done by everyone involved in the dean search, and the great results they achieved.
Mark joins a growing faculty. We will be joined next year by five new colleagues: Adam Steinman, one of the leading young figures in civil procedure and federal courts; Jenny Carroll, who has been doing terrific work on criminal procedure, among other areas; Mirit Eyal-Cohen, an important emerging figure in the area of tax law; Yuri Linetsky, who will be adding to our significant clinical programs; and John Gross, an accomplished and experienced criminal defense attorney who also will be contributing to our clinical offerings. I'm very excited about all of them, and about Alabama's continued growth and progress. Welcome, everyone!
Schragger on Localism, the Establishment Clause, and Town of Greece
In a post last week on the Town of Greece v. Galloway decision and the "geography of church and state" (TM), I wrote to express my hope that Rich Schragger of UVa would say something about these issues. Once again, Prawfs gets results. Rich had this interesting post on the issue last Thursday. Like all his stuff, it's worth reading.
I think, based on his writings on these issues, that we come out in different places on the Establishment Clause and localism at the end of the day. I tend to think, perhaps in the teeth of the constitutional text (at least as some read it), that local "establishments" are more worrisome and more in need of judicial oversight, in light of the lumpy demographics of religion on the ground, than national "establishments." But Rich has written more and better things on this issue than I have, and I always learn from and am challenged by his work in this area. And I agree with him on a central point of his post: that the nature and role of local governments in Establishment Clause cases like Town of Greece is generally, and wrongly, treated by the courts and by many advocates on the issue as "incidental and not central." Read Rich's post.
Cute Chart, Questionable Advice
I enjoyed the decision chart that Howard posted the other day, but for some reason it's been sticking in my head. It's perhaps worth noting that in its original appearance (as far as I know), it was titled "Asking questions at conference," not--as Howard has it--"Workshops." (Howard got it via Feminist Law Profs, which didn't title it one way or the other.) I'd have to think about whether it makes more sense for conferences as opposed to workshops. But although it obviously is humor, pretty obviously is funny, and definitely conveys some truths, I think it would be bad advice for those considering asking questions at workshops. Part of my concern has to do with something a commenter on Howard's post picked up on--that, if we are to credit recent studies and articles about confidence gaps, a rule that encourages the un- or under-confident to almost always shut up could have negative and disproportionate effects. Of course I think there is definitely such a thing as too much confidence in the value of one's own contributions. But I wouldn't want a rule of etiquette that effectively leaves the already overconfident free to natter on and reinforces the insecurities of those who are already underconfident.
And some of the "advice"--although, again, I understand that it's just humor--is just plain wrong, at least in a workshop setting and probably in any setting. We have all heard--and most of us have asked--workshop questions that go on far too long; but, to take one example, "Could you write your question on twitter" seems like just an awful guideline.
Here's a general suggested guideline on whether to ask a workshop question: Are you serving the paper, author, and/or workshop process, or are you serving yourself?
If your question is meant to provide a useful challenge, refinement, or improvement to the paper, then it's probably OK. The fact that you might, God forbid, be wrong or, worse still, sound dumb should not stop you from asking the question. The fact that the question might draw on your own work is not disqualifying, if the question would serve the paper and not just yourself. The fact that the question might start with "In my experience" is perhaps a warning flag, but not in itself disqualifying. Maybe your experience is relevant. In any event, it's not quite right to say in response to this prospect, as the chart does, "No-one came to hear about your experience. They came to hear from the speaker." They came for the paper, not the speaker. If your question would serve the paper, then so be it. For that matter, there are some speakers out there, and not just audience members, who need to remember that they are there to serve the paper and not themselves; some brush-off answers end up demonstrating the speaker's own cleverness and facility at debate while batting aside genuine problems with a paper.
There are some special cases. In particular, what do you do if your question is really just a fundamental disagreement with the foundational normative (not factual) premises of the paper? My answer here varies. If the paper starts with an assumption in favor of equality rather than liberty, to offer a somewhat cartoonish example, there may not be much point in questioning it on that basis. If the paper is an "originalist" take on some question, I doubt there's much point in taking on all of originalism in a question. On the other hand, there are many papers that take their foundational premises for granted, don't spell them out, don't address well-recognized internal problems with that premise, and so on. Asking the speaker (or the paper) to spell out its assumptions better can be a valuable service.
In any event, I think the single question I have offered above is a fairly useful general guideline in determining whether to ask a question at a workshop or not than the one presented in the chart. Again, I appreciate that it was just a joke chart. But since it troubled me, and given that Howard offered it his approval, and in light of the background concern raised by that commenter, I figured I'd offer my two cents.
Wednesday, May 07, 2014
Geography and Town of Greece v. Galloway: A #Prawfspitch
I've been thinking and, in draft, writing about geography and church-state relations over the last couple of years. It seems to me a fertile area in which not enough work has been done, and given the (also underexploited) overlap between race and religion, it is an area in which much more could be done to adopt or adapt materials like this. (More directly on point, I strongly recommend this book, which summarizes a series of books.) The subject has been much on my mind in the last two or three days while reading and commenting on Town of Greece v. Galloway. I assume plenty of people are sharpening their keyboards to write longer scholarly work on the case, and I thought I would offer, for what little it's worth, some ways in which the opinion more or less obviously intersects with questions of geography and church-state relations. All of these suggestions are yours, for the price of a mere footnote.
1) The most obvious connection is the piece of Justice Kennedy's ruling that concludes that the town's failure to reach outside its boundaries in seeking people of other faiths to give invocations, which was particularly important in the case given the fact that there were synagogues located nearby and serving the town's Jewish population, does not constitute a violation of the Establishment Clause. Justice Kennedy writes: "The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimination, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing." As I said in my SCOTUSblog post, this is both reasonable and troubling. It makes some administrative sense, and reflects the idea that an invocation at a local government meeting will serve and mirror the local community. But political borders are neither purely adventitious nor utterly innocent, whether one is thinking about race or religion. (Mark Tushnet has a post raising similar questions.)
2) On a related point that I mentioned but buried deep in my earlier post today, Justice Kennedy wrote a concurrence in the Kiryas Joel decision that deserves to be read alongside and against his opinion in Town of Greece. In saying so, I'm not suggesting that the two are irreconcilable. I do think, however, that one might help illuminate the other, and perhaps bring out some important tensions.
3) A broader point of the geography of church and state is raised by the Town of Greece decision, one that we generally pay less attention to because of our assumptions about the national uniformity of constitutional law. Again, I would recommend here the book One Nation, Divisible: How Regional Religious Differences Shape American Politics, by Mark Silk and Andrew Walsh. That book, summarizing a series of other books, discusses the different ways in which religion tends to manifest itself in different regions of the United States, and the different forms of church-state relations and controversies that these regional differences produce. These differences have and will certainly play out in different forms of and fights over legislative prayers. Justice Kennedy's description of the nature and purpose of legislative prayers, however, assumes that legislative prayers have a particular, universal form and function, and that divisions over them, and solutions to those divisions, will be equally universal. In deciding Establishment Clause cases, the Court may sometimes make assumptions and offer solutions that might work well in some parts of the country and not in others.
4) There's also a somewhat more abstract question of the geography of church and state involved in Town of Greece; it appears mostly in Justice Kagan's dissent, about which I still hope to say something. Kagan writes, in the opening lines of her dissent: "A Christian, a Jew, a Muslim (and so forth)—each stands in the same relationship with her country, with her state and local communities, and with every level and body of govern ment. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American." This idea itself reflects a longer set of assumptions about the nature of political sovereignty and the place of religion within nation-states. In his book Pluralism, William Connolly describes it as follows: "The Westphalian accord in early modern Europe recognized the sovereignty of each European state over its citizens by pushing religious differences into the private realm." Of course, this idea has always been subject to refinement and contestation. Kagan's dissent, which I find somewhat underdeveloped and unsatisfying on this point, might be fruitfully explored in this light.
5) More obviously, there is Justice Thomas's concurrence, which pushes again on the question of whether the Establishment Clause is or is capable of being incorporated against the states. (This is the section that features the soon-to-be-famous words, "As an initial matter, the [Establishment] Clause probably prohibits Congress from establishing a national religion.")
6) On a more direct note, I hope that one of the people writing about these kinds of questions will be Rich Schragger of UVa. His work on the relationship between localism and church-state law is wonderful, and I think he would have a lot to say about this case that would be surprising, one way or another. His co-authored post on Town of Greece is good, but I think based on his past work that if he expanded on the introduction provided there, it might take him to very different places than his co-authors. I would definitely read that article.
Learning From Bedrosian, Cavanaugh, and Town of Greece v. Galloway
Rushing to speak about the latest church-state Supreme Court judgment is not just a sport for law professors. Legislators can do it too. It did not take long for Al Bedrosian, a member of the board of supervisors of Roanoke County, Va., to speak up, in rather moronic fashion. Bedrosian had urged the board to reject a nonsectarian prayer policy. After the ruling, he made clear not only that he did not want a non-sectarian policy, but that he wanted individual supervisors to approve individual prayer-givers and that as far as his own choices were concerned, he would not be inclined to approve "representatives from non-Christian faiths and non-faiths, including Jews, Muslims, atheists and others." Quoth Bedrosian: "I think America, pretty much from founding fathers on, I think we have to say more or less that we’re a Christian nation with Christian ideology . . . . If we’re a Christian nation, then I would say that we need to move toward our Christian heritage." In the story linked to above, Dahlia Lithwick of Slate writes that "[Justice] Kennedy’s plurality opinion Monday [in Town of Greece] opened the door to precisely this line of argument as a result of all his airy talk of religious tradition and history," that the opinion "open[s] the door for Bedrosian to zone out the Muslims and the Jews," and that "[t]he real worry after Town of Greece is that we get to pick, apparently by popular acclaim, which are the American religions and which are the un-American ones." More on this below.
Also on my mind these last couple of days has been a government official from my home state of Alabama, the wonderfully named Twinkle Cavanaugh, president of the Alabama Public Service Commission. Last summer, a minister, described as a friend of Cavanaugh's, gave an invocation at a commission meeting in which he begged God's forgiveness for our nation's wicked ways, saying, ""We've taken you [God] out of our schools and out of our prayers. We have murdered your children. We've said it's okay to have same-sex marriage. We have sinned and we ask once again that you forgive us for our sins." (Of note, given one of the debates in the Town of Greece case: the video suggests the minister faced the audience, not the board.) Cavanaugh defended the prayer, naturally.
What does Justice Kennedy's opinion in Town of Greece v. Galloway have to say to people like Bedrosian or Cavanaugh--and what do incidents like this say about the opinion?
I think Lithwick, despite her parsing of the opinion, is mostly wrong to say that it opens the door to a policy like Bedrosian's or to the policy that someone like Cavanaugh might opt for. Kennedy is clear, or clear-ish, that "If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, . . . [t]hat circumstance would present a different case than the one presently before the Court." The purpose of an invocation is supposed to be to solemnize an event, not to serve as a soapbox or proselytizing forum. A pattern "of prayers that over time denigrate, proselytize, or betray an impermissible government purpose" may establish a constitutional violation. While a prayer policy that, tracking local borders, ends up being nearly entirely Christian will not transgress the Establishment Clause, the governmental body in question must "maintain[ ] a policy of nondiscrimination." In his concurrence, Justice Alito adds that he would have viewed the case "very differently" if the omission of local synagogues by the Town of Greece "were intentional."
It is quite clear that Bedrosian's policy violates these precepts. It seems equally clear that if there were a "course and practice" on the part of someone like Cavanaugh of inviting invocations that served as a general opportunity for rather opinionated and potentially denigratory prayer rather than solemnization, a court following Town of Greece would be empowered to act. Active, intentional "zoning out" or "picking" of particular faiths, or using a prayer policy as a forum for moral revivalism rather than somewhat platitudinous (if sectarian) solemnization, are not now entitled to free rein.
I said "mostly." As Howard writes elsewhere on this page, and as Chris Lund writes in his contribution to the SCOTUSblog symposium, it will be more difficult to show a "course of practice" than to single out particular prayers as impermissible. Cavanaugh might get one, two, or several byes, although if she maintained a pattern or policy of inviting invocations like the one described above, in theory the practice ought to be redressable. There is also the question of how interested the Court really will be in these issues going forward, and how lower courts will respond; Town of Greece gives them adequate tools, but there is no guarantee they will use them. And while I think Lithwick's particular description of "zoning out" minority faiths is wrong, it is true that the Court demonstrates a somewhat touching faith in political borders, and would appear to have no problem if a prayer policy that was not actively discriminatory nonetheless ended up excluding minority faiths simply because the local houses of worship within a set of political borders belong to one faith. (Someone will have to take up the work of reading Kennedy's opinion in Town of Greece against his concurrence in the Kiryas Joel case.)
Howard notes that not every public official will be as blatant as Bedrosian. That leads me to my last point, which has to do with what Justice Kennedy might learn from Bedrosian or Cavanaugh rather than the other way around. Kennedy paints a rather neat picture of legislative prayer as "lend[ing] gravity to public business, remind[ing] lawmakers to transcend petty differences in pursuit of a higher purpose, and express[ing] a common aspiration to a just and peaceful society." And in defending the practice, he writes, "A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent." Those words, taken together, suggest that there is a long and calm practice at work, and that suddenly erasing it would open up an unfortunate new front in the culture wars.
But legislative prayer is not just an unbroken, calm tradition. (If it is that at all, but nothing turns on that for my point here.) It is also, at least sometimes, a deliberate, and deliberately introduced, front in the culture wars. If Bedrosian wanted mostly Christian prayers, he could probably have relied on religious demographics and political borders to do his work for him. But that does not mean his blatant statement the other day was a clumsy error. He may have wanted the attention more than he actually wanted the prayers. He may have wanted to speak to a subset of the primary voters of Roanoke County more than to the Christians of Roanoke County as a whole. By the same token, I assume Cavanaugh sincerely believes what the minister who gave that invocation had to say. But even more strongly, I suspect that, with one eye on future primaries and future offices of her own, she would rather be seen to be condoning a divisive, non-solemnizing prayer than to select ministers who would make milder statements and draw no attention to her at all.
That does not mean Kennedy's descriptions of legislative prayer are always wrong, or that the opinion is utterly wrong. (As I've written elsewhere, I think legislative prayer is a constitutionally questionable practice; and as I wrote yesterday, I have issues with Kennedy's opinion. But not necessarily because of Bedrosian or Cavanaugh.) But it does suggest that there is too much milquetoast in his description of legislative prayer. It also suggests that his description of the occasions for political division along religious lines is too limited. It is true that getting rid of legislative prayer at one fell swoop would be divisive. But it's also true that sometimes, particularly in the hands of primary-minded politicians, legislative prayer can be intended to divide, not to solemnize. In the short run, at least, given Town of Greece, I suspect that the most effective forces in counteracting this use of legislative prayer for deliberately divisive political purposes will be the supporters of legislative prayer, who have an obligation to condemn this kind of behavior, and not its general opponents.
Tuesday, May 06, 2014
Town of Greece v. Galloway on SCOTUSblog
SCOTUSblog is running a series of quick-take reactions to the decision in Town of Greece v. Galloway. Here's the index, and here is my short piece on Town of Greece and Scottish menswear; stay tuned for my friend and co-blogger Rick's commentary as well, and in the meantime definitely read Chad Flanders's piece. I hope to have other commentary here in time. Enjoy.
Monday, May 05, 2014
Review: Legal Intellectuals in Conversation
Friday, May 02, 2014
Weekend Reading: "The 'Law' in Dworkin's Treatment of Law and Religion"
Just posted on SSRN is my forthcoming short piece, "A Troublesome Right": The 'Law' in Dworkin's Treatment of Law and Religion. Comments and corrections welcome, as always. Here's the abstract:
In his final book, Religion Without God, Ronald Dworkin offers an eloquent and gloriously compact treatment of a massive subject--life, death, eternity, and the human condition. He also offers an application of his views on those broader questions to a narrower, more practical issue: the law of religious freedom. In this paper, I focus narrowly and critically on Dworkin's treatment of the law of religious freedom.
Dworkin asks whether there is a principled "justification for offering religion a right to special protection that is exclusive to theistic religions," and if not, what the scope and nature of religious freedom should be. He ultimately proposes, in effect, to interpret "religion" broadly for purposes of "freedom of religion" but demote that freedom altogether. He would treat freedom of religion as "a very general right to what we might call 'ethical independence'" rather than as a "special right." As such, subject to some constraints, government could infringe freedom of religion without having to show a compelling interest in doing so. Dworkin would also, it appears, substantially limit the occasions on which government can or should provide legislative accommodations for burdened religious practices. What we have, when Dworkin is done, is basically a narrow version of the Supreme Court's decision in Employment Division v. Smith, but without that decision's receptivity to legislative rather than judicial accommodation of religion.
There is much to admire in Dworkin's broader arguments about religion in the book. His arguments about the law of religious freedom are quite another matter. The accuracy and persuasiveness of Dworkin's arguments on this issue rest substantially on three things: his statements about current law; the initial moves by which Dworkin clears the ground for his demotion proposal; and his applications of the demotion proposal, which he suggests could help lower the temperature of the culture wars. I argue that all three elements of Dworkin's argument for the demotion of religious freedom are deeply flawed.
Thursday, May 01, 2014
Why Are You Here...
...when you should be visiting Balkinization?
Perhaps I put that badly. I just wanted to point out that Balkinization has had a lot of fantastic posts lately. In particular, it's running a great series of responses to Bruce Ackerman's latest "We the People" book, The Civil Rights Revolution. And it has run a number of interesting posts recently by contributors to a Yale Law Journal feature on "Federalism as the New Nationalism." To paraphrase Apu, please go away and read Balkinization, and come back soon.
Monday, April 28, 2014
"Hell on earth" and "jackbooted authoritarianism"
Sparked in part by this Robert George post--which, I must say, refers to a very serious underlying problem--I was inspired to revisit this book review (of a book by Gertrude Himmelfarb) by Richard Posner, which I think is one of his better and more enjoyable book reviews. (That's saying a lot; book reviews, which I tend generally to love, are a genre in which he does some of his best work.)
While I'm on this inspiration kick, I would add that Ted Cruz's rather astonishing line the other day describing the Bundy standoff as a product of the Obama administration's employment of the "jackboot of authoritarianism" reminded me of one of my favorite passages from Tom Wolfe, quoted at length in this ancient post from the Volokh Conspiracy. Here's part of it:
Support [for Wolfe's view that fascism wasn't coming to America] came from a quarter I hadn't counted on. It was [Gunter] Grass, speaking in English.
"For the past hour, I have my eyes fixed on the doors here," he said. "You talk about fascism and police repression. In Germany when I was a student, they come through those doors long ago. Here they must be very slow."
Grass was enjoying himself for the first time all evening. He was not simply saying, "You really don't have so much to worry about." He was indulging his sense of the absurd. He was saying: "You American intellectuals — you want so desperately to feel besieged and persecuted!"
He sounded like Jean-François Revel, a French socialist writer who talks about one of the great unexplained phenomena of modern astronomy: namely, that the dark night of fascism is always descending in the United States and yet lands only in Europe.
Not very nice, Günter! Not very nice, Jean-François! A bit supercilious, wouldn't you say! . . .
Friday, April 25, 2014
"More 'Vitiating Paradoxes': A Reply to Steven D. Smith--and Smith"
As I've said here many, many times, I'm a big fan of Steven D. Smith and of his work on law and religion. I don't always agree with it, but I frequently do and I always find it bracing. His latest book, The Rise and Decline of American Religious Freedom, is well worth reading. A lecture he gave on the subject of the book, drawn substantially from the last chapter of the book, will be published shortly by the Pepperdine Law Review. I have one of several replies that will accompany the lecture. It's somewhat awkwardly titled More "Vitiating Paradoxes": A Reply to Steven D. Smith--and Smith, and it's now available on SSRN. Comments are welcome, of course, and I believe Steve will have a response to the replies. Here's the abstract:
This is a reply to Steven D. Smith's Brandeis Lecture, "The Last Chapter?" That lecture is substantially drawn from the concluding pages of his fine recent book, The Rise and Decline of American Religious Freedom. In the lecture and the book, Smith explores what he calls some "vitiating paradoxes" of some of the key concepts that undergird the conventional account of American religious freedom, and argues that those paradoxes may render religious freedom especially vulnerable in an age of increasing liberal egalitarianism. He also offers a competing account of religious freedom, one that involves both a "soft constitutionalism" approach to the Establishment Clause and a revival of some form of "freedom of the church."
My reply is basically an internal account, supportive in some respects and critical in others. One of the main contributions that Smith has made to law and religion scholarship over the years is his skillful deployment of critical tools to reveal flaws in the underpinnings of Religion Clause law and theory. He is, I suggest, the charter member of the law and religion branch of a rather small but valuable school: Conservative Critical Legal Studies. In this reply, I take his critical views on board and wonder where, if anywhere, the "potentially vitiating paradoxes" that he identifies in the conventional account of religious freedom end; I also apply Smith's critical framework to the competing account of American religious freedom that he offers. In particular, I question his recommendation of some form of "soft constitutionalism" limited essentially to the Establishment Clause; explore the difficulties involved in what I suggest is a growing reconciliation, including among conservatives, to the Supreme Court's decision in Employment Division v. Smith; and ask whether we might not view arguments for "freedom of the church" as a kind of salvaging device for those who favor a "soft" or jurisdictional reading of the Establishment Clause, and who have come around on Employment Division v. Smith, while still seeking to preserve some measure of church autonomy.
I should add that my observations about "freedom of the church" as a salvaging device are not meant as an indictment or a charge that it is intentionally being offered for that purpose. (Nor would I assume that some of the recent arguments against it, or against legal doctrines related to it, are offered insincerely or strategically.) I have written repeatedly* and quite supportively about freedom of the church and/or institutional religious freedom. But, as I've written elsewhere, I also think it's a valuable exercise for its friends, and not just its adversaries, to take a critical look at the concept, even (or especially) if they ultimately support it. Similarly, as new (or very old, depending on your perspective) doctrines and arguments emerge in a field, I think it's important to examine how they fit in with the web of existing outcomes and existing or changing doctrines. It's here, I think, that my "salvaging device" argument comes into play. But this can be a more or less organic development rather than a step in some grand, secret plan. With that caveat in mind, enjoy.
* (Need I add that this book would make a splendid belated Administrative Professionals Day gift?)
Friday, April 18, 2014
Three (and a Half) Takes on Animus
I have a "jot" on Jotwell today about Steve Smith's forthcoming piece, The Jurisprudence of Denigration, which offers a critical but (and?), I think, very intriguing take on the use of animus in United States v. Windsor. As I say in the jot, hopefully correctly, one may support the outcome in Windsor and still think that Smith offers some useful and provocative comments on why contemporary constitutional and moral discourse may lend themselves to the use of animus rather than alternative forms of argument in this area. I suspect that Steve and I may often have sharply different views on some of the underlying issues here and elsewhere, but I always find his work productive and disturbing.
It's an interesting coincidence that this jot appears a couple of days after I noticed a new paper by Dale Carpenter, Windsor Products: Equal Protection From Animus, forthcoming in the Supreme Court Review. I haven't read it thoroughly yet, but so far I find it a clearer and better description and defense of the concept of animus than much I have seen elsewhere, and certainly than Justice Kennedy's own writing on the subject. I look forward to reading the whole thing more carefully. It's not up on the website yet, but I should also note that the Harvard Law Review's latest issue has a good package of pieces on developments in this legal area, with a clear and lovely scene-setting introductory piece (although I'm not convinced that President Obama was the right person to quote at its conclusion) and an interesting chapter on, again, animus. Also recommended.
Wednesday, April 16, 2014
Do Chemerinsky and Menkel-Meadow's Views on Curriculum Represent a Consensus View in the Legal Academy?
I'm focusing on only one piece of this op-ed by Erwin Chemerinsky and Carrie Menkel-Meadow. They write:
Some, including the Bar Association’s task force, have suggested that states should reduce the level of undergraduate education required to take the bar exam. Yet the profession benefits enormously by having attorneys who have undergraduate degrees in other fields: This makes them more well rounded and better-educated citizens, as well as better lawyers. Many other countries have begun to recognize this, and nations like South Korea, Japan, China and Australia have recently shifted to the American model of requiring an undergraduate degree before law school.
Another common suggestion — also made by President Obama — is to reduce law school to two years. This is a terrible idea.
The profession needs law schools to produce lawyers who are better prepared to practice law, not less well trained. That would be impossible in two-thirds of the time. If law school were of just two years’ duration, the first things to be cut would be clinical education and interdisciplinary courses, which are the best innovations since we went to law school in the 1970s.
We agree that legal education could benefit from further innovation, but not in the ways many of the critics advocate. Law schools need to teach a greater diversity of subjects to improve legal judgment and decision-making. In this respect, law schools should emulate business, architecture and planning schools. These have adapted to new economic realities by emphasizing the teaching of leadership, corporate governance, new finance and negotiation skills.
Law school faculties, in their teaching and their scholarship, must deal with the emerging problems of the 21st century. Law schools need to develop new courses to provide students with the expertise to deal with the crucial problems of our time in fields like banking law, national security, conflict resolution, food safety, Internet law and migration policy. There should be “problem-based” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace.
None of this will be possible if law school is cut to two years. Sometimes, less is not more. And sometimes, the rhetoric of crisis leads to proposals that are far worse than the actual problems we face.
I agree with the last sentence, as it turns out, although that has nothing to do with whether there is a crisis or not (I'm not sure the label is terribly useful, but neither is it outrageous), or whether law school reform is necessary (law school reform is always necessary). It's not just that treating reform in this area as a response to a crisis may lead to ill-considered reforms, although I think that is true. Rather, I'm worried that if the "crisis" is seen as having passed, it will sap the will and energy to think about useful long-term ways to reform or remake law schools. Law schools are ostensibly faculty-governed, and faculty have an ongoing ethical and professional obligation to monitor what they are doing and think about how they could do it better, crisis or no. I also agree that increasing and even mandating finance and accounting related offerings would be a good idea for law schools.
That's a side note. What I am really interested is in asking whether Chemerinsky and Menkel-Meadow's views represent a consensus view in the legal academy. I'm pretty sure the answer is "no." Of those interested in law school reform issues, as far as I can tell, many believe there is nothing wrong with a two-year law degree, or with a two-year degree for licensing purposes with the option of additional years of study. Of those who prefer a required third year of study, I suspect that a fair number of them favor it for traditionalist reasons and are not looking to redo the third year altogether; of that group, some hold those views strongly and others are just casual defenders of the status quo. Of those who favor a third year of study that does different things than the current curriculum does, I suspect that many of them would rather have that year emphasize lawyering skills and not "21st century" issues like "national security, conflict resolution, food safety, Internet law and migration policy."
And, sadly, I suspect a large (but shrinking?) number of law professors are still just not that concerned with these issues at all. Given a relatively costless choice like, say, going to an AALS panel on law school reform or hanging out in the hotel lobby, a substantial number will still choose the latter option. (Although I will note that the numbers of people attending those sessions, and voicing interest in such issues at their own institutions, has certainly grown.) In an ostensibly faculty-governed environment in which the faculty often don't govern much and mostly do their own thing in their own classroom, apathy is always a problem.
None of this makes Chemerinsky and Menkel-Meadow wrong, of course. (I think they are.) But I wouldn't treat their views as representative of the legal academy.
One last word, on “'problem-based'” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace." I think the idea of problem-based seminars on public policy issues is a good one. (And not just public policy issues: they could and should work with issues involving the private sector as well.) In my view, the benefit of such seminars, if they're done right, will derive substantially from bringing in people other than lawyers as students and speakers. Most public (or private) policy issues involve a variety of stakeholders with different skills and interests, and this would be a useful way to learn what (if anything) lawyers can contribute, how they should deal with these different stakeholders, and what the non-lawyer stakeholders think is good or bad from their experience working with lawyers.
But not on "world peace," for God's sake! Too many law schools are already too intent on being "national" schools dealing with national or global issues, emulating schools at the top of the food chain. They are too little concerned with local issues, with the fact that they serve a local market, with forging relationships with local lawyers and stakeholders, and with performing actual services for the state, city, or region in which they are located. Regardless of the conclusions these seminars draw, the recommendations they make, or the service they provide--which, obviously, need not fall into some cliched and rather ideologically particularized vision of "social justice"--it may be that by focusing on difficult local issues, these seminars could provide a useful education to the students, expose students, experts, and stakeholders to each other and help them to sit down at the same table, provide the kinds of recommendations that might be useful to local governments (or private interests) in an age of straitened resources in which many states and localities simply buy public policy solutions off the rack from various think tanks and interest groups, and actually give something back to the region in which a law school is located.
None of this is adequate reason, in my view, for a mandatory third year; and the more national or global the subject these seminars handle, the less useful and educational they will be. Nor must or should these courses have a specific, heavy ideological tilt; they're about problem-solving, not political indoctrination. (Maybe a seminar on public policy issues surrounding a local crime problem would recommend stop and frisk! Or a seminar on why a locality is having trouble growing new businesses would conclude that local licensing and zoning requirements are overly burdensome and monopolistic and should be lessened or repealed! Who knows?) But the idea itself is a good one.
Saturday, April 05, 2014
Weekend Reading Squared
I'm grateful to Randy Kozel of Notre Dame for reviewing my book First Amendment Institutions. (Hell, I'm grateful to him for reading it.) His SSRN version of the review, forthcoming in the Michigan Law Review, is here, and the abstract follows. The book is available here and makes a fine Passover or Administrative Professionals Day present.
This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument — and, to a large extent, the leading edge of contemporary institutionalist thinking — ought to be received, understood, and evaluated.
Friday, April 04, 2014
Is a Vote For Campaign Finance Reform a Vote for Brendan Eich? (And Vice Versa)
Whatever I may feel about boycotts and similar actions in general, or the pressure for the resignation of Brendan Eich in particular, I must make clear that I do not think Eich was defenestrated. Jan Masaryk was defenestrated; Eich was subjected to highly disputable uses of market pressures. There's a difference, and as a sometime conservative I don't care for the degradation of the English language or for Marcusian rhetoric.
That said, I think today's Room for Debate argument in the New York Times, and especially the contributions by Leanne Pittsford and Leslie Gabel-Brett, both of whom support the events that led to Eich's deposition, is quite telling. It wasn't until reading those pieces that I fully appreciated the connection between this story and the widespread discussion in the same week of the Supreme Court's decision in McCutcheon and the general debate over campaign finance reform and the First Amendment. Google "McCutcheon" and "money is not speech," or run a Westlaw search for the same phrase, and you will find plenty of believers in this view. (Not everyone, and some supporters of campaign finance laws, including Larry Lessig, have called the slogan an unhelpful "gimmick." But it is a widely repeated slogan--sometimes in the Supreme Court itself.) Yet Pittsford writes, "[L]et’s be honest, writing a $1,000 check is a very specific, assertive action. It's very different than just having a belief. If you’re willing to put down your own money, it means you feel strongly about it." And Gabel-Brett makes quite clear her view that Eich's donation itself was expressive conduct. The two cases are obviously not identical. Still, it is startling to see in the same week, and sometimes roughly from the same side, outrage at the view that money is speech and the vehemently expressed view that Eich spoke by donating money.
Pittsford's contribution is also worth reading in light of the recent and ongoing arguments about the Hobby Lobby case and the question whether corporations can assert a statutory or constitutional burden on religious exercise. Here is a key paragraph of her piece: "The problem is that when you're a progressive company like Mozilla that champions progressive policies and open access, you tend to attract employees who feel the same way, and that creates an open progressive culture, which is one of Mozilla's strongest assets. You can't have a leader who doesn't reflect those views." Interesting use of the second person singular pronoun in light of last week's arguments!
Plus ca ChangeI'm rereading Adam Sisman's very well-done and readable biography of the historian Hugh Trevor-Roper. Here's a passage in which Trevor-Roper, a thoroughly nasty and brilliant man, describes the work of his colleague Lawrence Stone: "[He] wrote articles which, by the triple technique of a challenging thesis (generally a mere exaggeration of a borrowed thesis), a dogmatic ex cathedra style, and a portentous array of documentation . . . were taken everywhere, even by the elect, as being important contributions to scholarship." The next passage in the biography adds: "In later life Stone admitted that he saw nothing wicked about going into a different field of study 'with a pickaxe and digging out the gold and getting out fast.'"
Tuesday, April 01, 2014
Wake Up! It's April Fool's Day!
My favorite part of April Fool's Day--apart from the fact that it's also the day this year for my students to fill out their evaluations forms; that should be hilarious!--is Larry Solum's Legal Theory Blog. His entries almost always pass the "I'm going to click through, just to be sure" test. Enjoy!
As a bonus, here's an equally funny academic parody story in the New York Times, which I didn't think did this kind of thing. Titled "College Classes Use Arts to Brace for Climate Change," it's a must-read side-splitter. Again, enjoy.
Monday, March 31, 2014
Two Good Readings
The first is short but I couldn't resist. It comes from a speech Gov. Chris Christie gave this weekend at the Republican Jewish Coalition. In that speech, Christie said, "In New Jersey, nobody has to wonder whether I am for them or against them." Granted, the speech was about pandering on Israel, not about Bridgegate, but still--as they used to say on Archer, phrasing!
The second is slightly more serious. Through Arts & Letters Daily, there is a nice compliation of tributes to Daniel Kahneman at Edge.org. The contributions are mostly interesting, but for the writers among us I wanted to offer this quote from Jason Zweig, a journalist and one-time collaborator of Kahneman's who offers a difficult but bracing lesson he learned from Kahneman:
To most people, rewriting is an act of cosmetology: You nip, you tuck, you slather on lipstick. To Danny, rewriting is an act of war: If something needs to be rewritten then it needs to be destroyed. The enemy in that war is yourself.
After decades of trying, I still hadn't learned how to be a writer until I worked with Danny.
I no longer try to fix what I've just written if it doesn't work. I try to destroy it instead— and start all over as if I had never written a word.
Danny taught me that you can never create something worth reading unless you are committed to the total destruction of everything that isn't. He taught me to have no sunk costs.
Sunday, March 30, 2014
Thoughts on Ackerman on Dignity
Bruce Ackerman has a lovely op-ed in the Times today titled "Dignity is a Constitutional Principle." He writes, anent the recent same-sex marriage cases and future ones, that "the [Supreme Court] should reinforce its dignitarian jurisprudence by stressing its roots in the civil rights revolution." Relating things to his general We the People project of the last couple of decades--and congratulations to Ackerman for the recent publication of the third book in that project, We the People, Volume 3: The Civil Rights Revolution--he argues that the contemporary Court should look back not just to its earlier decisions but to the congressional debate over civil rights legislation in the 60s, in which various figures "articulat[ed] fundamental principles that Americans should consider in defining the terms of constitutional equality." He concludes:
This constitutional legacy should also shape our understanding of future civil rights struggles. Consider the situation of undocumented immigrants as they seek to attend school, get a job or drive to the supermarket. They face pervasive humiliation in sphere after sphere of social life. Does this not amount to a systematic denial of the “equal protection of the laws” guaranteed by the Constitution to all persons “within the jurisdiction” of the United States? . . . . As we search for guidance on the great constitutional issues of our own time, the place to begin is with the words of Humphrey as he explained why Americans could no longer “justify what we have done to debase humanity.” He argued that we “do not have to be lawyers to understand, ‘Do unto others as you would have them do unto you.’ ”
Beautifully written, to be sure. Yet, even if we concede that dignity is a constitutional principle, it leaves me with some questions. 1) Assuming for purposes of argument that dignity is a constitutional principle, is it a freestanding principle? (I don't take Ackerman to be arguing that in this op-ed.) 2) Assuming that dignity is not a freestanding principle but one that helps courts limn "the terms of constitutional equality" or of other constitutional provisions, does that say anything about how we should use it? Given its sponginess and, at best, only semi-textual quality, couldn't the recommended interpretive rule here be that courts should use dignity as a constitutional principle as sparingly and conservatively as possible? 3) Must dignity as a constitutional principle be subject to judicial application at all? Couldn't it be a meaningful but nonjusticiable constitutional principle--one that courts might afford some judicial margin of appreciation when used by legislatures but not treat as a principle that is independently enforceable by courts? 4) How well and clearly did (or do) dignity's champions actually "articulat[e]" the "fundamental principles" of dignity as a constitutional concept? (See, for instance, this paper by Neomi Rao.) 5) Does Ackerman intend what he says about "undocumented immigrants" to have any judicial purchase, or is he arguing only that it ought to guide We the People as citizens and representatives in our political decisions? He might be right about the latter suggestion without that implying anything about the former suggestion. We might agree that "pervasive humiliation in sphere after sphere of social life" is a constitutionally inflected issue that demands legislative redress, without believing that the courts are well-suited or even entitled to remedy it through reference to dignity as a constitutional principle, freestanding or otherwise--that, for example, the denial of drivers' licenses to "illegal aliens" is an indignity but not a judicially enforceable violation of the Constitution.
Read the whole thing, as they say, and decide for yourself.
Friday, March 28, 2014
Weekend Reading: Commonweal on Legislative Religious Accommodations
Here's a newly published piece in Commonweal, coming out in the print issue next week and available outside the paywall online, about the recent debates over legislative accommodations for religion. Here's the introduction:
After Arizona Governor Jan Brewer vetoed a bill last month that amended that state’s Religious Freedom Restoration Act, onlookers on both sides of the culture wars may have breathed a sigh—of relief or of frustration, depending on which side they were on. I hope they enjoyed it, because the break’s over.
The Arizona controversy wasn’t the first and it won’t be the last. Similar bills are in various stages of development in Mississippi, Georgia, Oklahoma, and elsewhere. Brewer’s veto, with its implication that the national and state Republican establishments and business interests would oppose such legislation if it aroused too much negative attention, may tamp down the fires in some states. Elsewhere, it will only stoke them. There are some serious issues here, they are not going away, and they are rarely described accurately. In other words, we are getting yet another master class on how to hold a culture war in America. Here’s a short explanation of the issues and a few lessons for combatants and onlookers alike.
Wednesday, March 26, 2014
Dorf on Ideological Polarization and Reversal in Hobby Lobby
Mike Dorf has an interesting column at Verdict arguing that the oral argument in Hobby Lobby suggests that the arguments over religious freedom have become more ideologically charged and, in various ways, display a reversal in views between liberals and conservatives. I certainly agree, as I wrote yesterday, that these issues have become more charged than they have been for some time. And although I might not characterize the whole thing the way he does, I do find much to agree with in what he writes. In particular, I agree with him that the case, or at least the underlying issues it hints at, present a fairly stark conflict between the basic values of liberty and equality. (I also have a piece coming out on this in Commonweal next week; I'll link to it when it becomes available.) Each side may at times exaggerate this conflict, and at other times may argue that, depending on a particular definition of those terms or of the facts, the "correct" outcome presents no true conflict between liberty and equality. (For instance, because there is "no mandate.") But there is a conflict, and although we can and should attempt to manage it in practice, it is real and ultimately cannot be perfectly resolved. I do have a couple of points I would add to what he says.
First, Mike focuses correctly on the culture war aspects of the case, but his description is perhaps a little lopsided. He writes: "The culture war of the last couple of decades shattered the bipartisan alliance that gave rise to RFRA. In the ensuing years, the right has increasingly sought to portray Christian religious traditionalists as a beleaguered minority." He is certainly right that the RFRA alliance seems to have shattered, at least on this issue and perhaps more generally. (Again, see my post yesterday, and a post by Tom Berg at Mirror of Justice, on a striking recent letter arguing that, in large part for "expressive" or symbolic reasons, any state RFRA legislation right now is a bad idea, even if the same legislation would have been fine twenty years ago.) I probably share the druthers of the left more than on the right, at least on most issues. But I think Mike's description emphasizes the right as a culture-war actor too much and doesn't really give equal time to the left's role in the culture war. On Facebook, every time I say something of the sort, I get comments about "false equivalency." So let me note that I am not making an equivalency claim, false or otherwise. I'm simply saying that a culture war typically involves two actors and that he, or we, might attempt to consider how conservatives or religious traditionalists would describe the same period of time. "Liberals who were willing to enact RFRA to protect minority religions from direct interference have started to balk at the idea of a religious right that goes that far," Mike writes. From the other side, we might say that religious conservatives have started to balk at an egalitarian left that not only has been successful in changing the culture, but increasingly views religious claims as dangerous or inconsequential, is increasingly pervasive in enacting those cultural changes into law, and increasingly rejects any separation between public and private on these issues.
Mike also writes that "Hobby Lobby involves the ACA, a law that conservatives have fought at every turn, in every possible venue." Fair enough! But my reading of the exemption debate over the contraceptive mandate, although much more optimistic and perhaps generous than that of some of my religious friends, is that a dynamic of refusing to compromise on the ACA, and particularly on its contraceptive provisions, was also at work on the left, for various principled and political (both electoral and interest-group related) reasons. The exemptions granted could have been more generous, and certainly started off very narrow, but they faced West Wing resistance every step of the way. (See, e.g., this story.) There are, again, political and ideological dynamics at work on both sides here.
Finally, Mike writes that the conservative/religious "culture war" view has "manifest[ed] itself in ever more extreme claims." He might think more about the dynamics that lead to this. Some of it is partisan, to be sure. Some of it has to do with the doctrinal shape of the prevailing law, which encourages categorical claims rather than balancing and thus raises the stakes on each issue. Some of it may have to do with the (real or perceived) increasing reach and potence of civil rights laws and their pervasive reach into various areas of life. And much of it may have to do with the particular public interest litigation groups involved in various cases. I could well see the ADF or the Thomas More Law Center making extravagant and questionable legal claims and finding some plaintiff to sign on to them, while a more "moderate" litigation group might not bring similar suits. Of course we see similar dynamics at work on the other side. Witness, for example, the debate that occurred for some time between "establishment" and independent gay rights groups and litigators about when and how to pursue various claims. Witness, as well, the Solomon Amendment litigation, in which a number of groups--supported by countless law professors!--made claims that the Court unanimously rejected as extreme. (Interestingly, those scholars afterwards more or less consigned the whole case and the arguments they had made about it to the memory hole and never mentioned it again, despite the obvious tensions it presented with arguments they had made in other cases.) We saw a similar willingness of many groups to make arguments in the Hosanna-Tabor case that were again overwhelmingly rejected and criticized by a unanimous Supreme Court. This is just a start; there are many interesting questions about what constitutes an "extreme claims" and why, on either side, such claims might end up becoming more common. For now I'll just say that it's an interesting issue and that Mike might consider these additional possibilities.
Tuesday, March 25, 2014
The Good and Bad of Hobby Lobby
As oral argument gets underway in the contraceptive mandate cases, the blockbuster RFRA case of the decade, here are a couple of quick thoughts about one or two good and bad things about these cases from the decidedly narrow perspective of the law and religion scholarly community.
Bad: What has struck me more than anything else about these cases and the argument around them has been the highly aggressive "framing" of the case, its import, and the issues it raises. I am describing general tendencies as I have seen them, and there are always exceptions. But it seems to me that there has been a tremendous effort to frame the case as categorically "easy" one way or the other. Hobby Lobby might win, or at least get some traction, if the argument were that the exemptions already contained in the ACA were sufficient to make the failure to grant an additional accommodation discriminatory according to a decision like Lukumi Babalu Aye. Or it might lose if the question were whether there is a substantial burden here, particularly given the arguable separation between the corporation and its owners, or whether, even if there is a substantial burden, the government nonetheless has a compelling interest in enforcing the mandate.
These issues have certainly been discussed. But much more of the discussion has been about making categorical arguments. That is certainly true on the defendants' side, where there have been arguments that there is no mandate at all, or that corporations are categorically excluded from invoking RFRA (or, sometimes, that they have no Free Exercise rights, although see my last post), among other attempts to say that the plaintiffs don't lose at the balancing stage but lose early, categorically, and absolutely. I think it is perhaps less clear as a strategy on the plaintiffs' side, but even here I think that for many defenders of the plaintiffs' claims there has been an effort to focus on those aspects of the case that advocates believe the plaintiffs should win categorically, and some elision of the more difficult issues, such as where and how to draw the line (if anywhere) between different kinds of entity claimants or how to effect the balancing if there is a viable claim.
The framing has been still more aggressive, on both sides, at the level of discussion of the stakes of the case. It is a normal strategy of advocates to emphasize slippery slope problems where that will help their case, and to emphasize the law's tendency to impose some common sense and live with slippery slopes where that will help. In this case, both sides have eschewed arguing about how we might draw some lines in this area, and instead have taken an almost apocalyptic view of what the "logic" of the other side's arguments will lead to, as if inexorable, unstoppable logic and nothing more drives the development of cases and lines of precedent. So, on the one side, a victory for Hobby Lobby will lead to the destruction of civil rights laws in general and to the obliteration of the rule of law. And on the other, the logic of those who defend the mandate will lead to the complete undoing of religious freedom.
These framing efforts have been aided and abetted, by serious people on both sides, by fighting so much of the battle in the public sphere and not just in briefs and scholarly articles. On sites like Slate or columns like Linda Greenhouse's, or on corresponding conservative sites, there has been a constant pounding drumbeat on this case, and it's in the nature of those kinds of public debate that the rhetoric is heated and often outstrips the nuances, and ignores the possible saving constructions or reasonable limits that often figure in the actual decision of a case. In this the public commentators and the more serious academic types have, it seems to me, worked hand in glove. I consider that an unfortunate development.
One friend (with whom I respectfully disagree about the case itself, for what it's worth) has suggested to me that this is a product of the seeming success of the heavy ref-working in the NFIB case. That case offered to the legal and legal academic communities a template for the way that contentious legal issues will be played out in the press and elsewhere from now on. That's a fair lesson to take from that experience but, in my view, a deeply unfortunate one, especially for those legal academics who get involved in playing the public framing game. There are high stakes in this case even after the rhetoric is stripped away. But I see the job of legal academics and experts on a particular issue as being to explore and explain the nuances of cases, to show what the stakes are and what problems will be raised by deciding a case on particular principles, but also to explain why it is unlikely that any given case will turn on nothing more than principle and logic and how courts might, however clumsily or incoherently, soften the blows of particular legal principles. Certainly it's not their job to raise the stakes, or indulge the commentariat in its heated rhetoric, for purposes of encouraging a particular result.
Again, this is obviously a particular and personal perspective on the public discussion of the Hobby Lobby case. But I have been very disappointed by and worried about the nature of that discussion, and many academics' role in it.
Good: Until recently, my general view of the law and religion community in the United States, which is a fairly small group, has been that there is too much consensus. We mostly all get along very well (although some of this depends on how you define that scholarly community). We certainly don't all agree! On the whole, though, I thought we tended to agree on so much that at times we didn't fully appreciate or explore some fundamental issues and differences in this field. We took very different views on how to interpret the Religion Clauses, but most of us took religion itself seriously and thought religious liberty a good in itself.
I think that consensus, if I was right to see one there, has substantially dissolved in the past two years, quickly and startingly. It is illustrated in some ways by the letter referenced in this link, signed by several friends whose work I respect, which argues that whatever law and religion scholars and others might have thought about RFRA twenty years ago, we should question state RFRAs altogether today, partly because of their substance and partly because they will be "seen . . . as a shield against enforcement of civil rights laws (current and future)." (emphasis added) It is striking to me, although not necessarily unreasonable, that a group of scholars could now oppose state RFRAs that they might once have supported as much because of their purported "expressive meaning" as because of their substance. More generally, there has been a stark division in the law and religion ranks of late, one driven substantially by the standard conflicts between liberty and equality, and one that has played out in a dramatic and heated fashion with very little apparent middle ground.
As a middle-ground type myself, I am saddened by this development. But it may be that this loss of consensus will be good for law and religion scholars, insofar as it forces us to state our premises more clearly and defend them against more vigorous attack. I do worry that this will tend to make the issues seem more polarized than they actually are, and lead scholars in the field to ignore the messy real-world compromises, and the inevitable if questionable splitting of the difference on matters of principle, that actually take place on the ground in church-state relations and in contests between liberty and equality more generally. But it may lead to more clarity in the field, even if some of that clarity is ultimately directed at defining more precisely the areas in which there are unbridgeable differences between us. Whether any of that will benefit anyone outside the community of law and religion scholars is, of course, a separate question.
What is Missing From This Slate Piece?
On the day before oral arguments in the contraceptive mandate cases, Slate has published a piece on the history of corporate personhood by Naomi Lamoreaux and William Novak. It's interesting and provocative, although I find it odd that the piece basically jumps over the decades of debate and discussion over this issue in England, Germany, and the US between 1870 and 1940 or so. But there's something still odder about the article, and this one I just can't figure. One phrase never mentioned in the piece is "Religious Freedom Restoration Act." Another is "Dictionary Act." And I read the piece quickly, although more than once, and if the words "statute" or "statutory" appear anywhere, they were used so glancingly as to escape my attention. I cannot understand why, on the eve of a major RFRA case, Slate has published a piece that purports to be about the case but never so much as mentions--indeed, if anything carefully omits to mention--the statute or the fact that it is a statutory case. [UPDATE: Link, and gratuitous swipe at Slate for its dismal site design and lack of a search function, added.]
Monday, March 24, 2014
Of Course Justice Ginsburg is Replaceable
I didn't think I would write again on this topic; I thought it was pretty played out. But it appears, somewhat inexplicably, that Erwin Chemerinsky has put it back in the news with a recent op-ed. Garrett Epps and Dahlia Lithwick have filed dissents.
I chose the title for this post, so I'm responsible for it. I don't assume Lithwick chose her headline--"Ruth Bader Ginsburg is Irreplaceable"--so I don't hold her responsible for it. Still, my title is certainly a response to that one. Granted that we are all each one of us special, and that Ginsburg is extraordinarily smart, a leading figure, of great historical importance, and so on. And Lithwick, citing Epps, has a point when she argues that Ginsburg's seniority itself, with the opinion-writing assignment power that goes with it, is a factor in itself apart from her own gifts. Nevertheless, no one is irreplaceable. What is true is that every Justice and every Court necessarily involves unique personal and relational factors. But every Justice can be replaced and, inevitably, will be replaced. The only question is one of timing, and there is nothing unreasonable or insulting about suggesting that, if you care about things like liberal outcomes or care more about the outcomes and their effects on average Americans and less about honoring particular justices as individuals, the balance of factors favors retirement now rather than later. I'm not sure I take that view, but then I'm not a crusader for liberal outcomes on the Court or much given to talking about the effect of the Court's decision on women, minorities, and Americans in general. The people who are inclined to talk in those terms are the ones insisting she should not retire, and that seems irrational to me. Certainly the fact that she more than earned her seat, or that she would be unhappy without it, are hardly important factors for the rest of us to consider. If there is one area where elite Americans of all stripes come together, it is in their membership in the cult of personality. ("I am fascinated by this woman warrior with the body of a sparrow and the heart of a lion," Epps writes. Rich sentence, but a little too Gladiator for my simple democratic tastes.) On this issue I agree with much of what Isaac Chotiner has to say in this New Republic piece. (I must add that the New Republic may actually be outdoing Slate as the worst-designed web site in its sector of the Internet. I feel almost obliged to apologize for linking to it.)
I should add that both Epps and Lithwick make some interesting and valid points. In particular, I find it difficult to figure out why Chemerinsky bothered writing at all. If insisting ten times that someone should retire doesn't work, it's pretty unlikely that things will change the eleventh time. Epps is not wrong to wonder whether the drumbeat isn't "bad manners and bad psychology," although the latter is much more important than the former. (Other points are much more debatable. I won't bother to list them all. But when Lithwick writes that "many" believe John Paul Stevens retired from the bench "too early"--at 90!--I think she is being generous in her use of the word "many.")
I thought the most interesting, and telling, statement was in this passage from Lithwick:
It strikes me as interesting that regular court-watchers tend to be affronted by suggestions that it’s time for Ginsburg to go, just as political scientists are astonished that it isn’t. Maybe Linda Greenhouse, Epps, Bazelon, and others are considered by the Ginsburg’s-got-to-go crowd as simply captive to the same “justices aren’t political” brainwashing as Ginsburg, but maybe they just see Ginsburg through a different lens.
Perhaps that is precisely where the difference lies, between the political scientists and attitudinalists and the more personality-oriented and deferential "court-watchers." I think reason favors the political scientists on this one, and that much is implied by that word "affronted," which suggests that the whole issue is personal rather than strategic and, to be blunt, focuses more on the legal celebrities than on the people whose lives their votes affect. Lithwick writes of "the fears of all of us who have watched the court slowly erode abortion, employee, environmental, and voting rights in the past decade." I happen to share those views, more or less, on a political level, although I consider my feelings on the matter mostly irrelevant to my work as a legal academic, at least when I am doing my job right. But if those are her fears, then it hardly seems flawed to me, as it apparently does to Lithwick, to say that "counting to four, or five, is more important than the justice herself." To the contrary, it obviously is. The attitudinalists may not take everything into account, but on balance they're right.
Tuesday, March 18, 2014
Cartoon Caption Contest Contest
This week's cartoon caption contest in The New Yorker features the following cartoon:
As far as I can tell, what we have here is a nine-member court watching a ping-pong match between two players also wearing judicial robes. I have been puzzling over this one. Is this a routine nine-member court watching two more judges from some other court, a somewhat unusual eleven-member court, a poorly thought out cartoon, or something else? Your suggestions are welcome--to me if not The New Yorker.
Friday, March 07, 2014
Supreme Court Unanimity, T'other Way Around
At CoOp, Gerard Magliocca has an interesting "thought experiment"--I would call it a "question"--about Supreme Court unanimity. He asks: "Can anyone think of a Supreme Court opinion that failed because it was not unanimous? In other words, is there any opinion that was gravely undermined by the fact that one or two Justices dissented?" The discussion is good. (For the record, like at least one other commenter I would have offered Gobitis as an example as well.) But I think the question or its suppositions may get things the wrong way around. Supreme Court opinions don't fail because they're not unanimous; they're not unanimous because they (are about to) fail.
Not always, of course. Really, this question and/or situation is most relevant where the Court is confronted with a politically and socially charged issue that is in the middle of the journey from being uncontested on one side of an issue to being uncontested on the opposite side of the issue. (The best discussion I know of on this is Larry Lessig's earlier con law theory work.) Unanimity at the first end will not rescue an opinion from being overruled when the social and legal consensus has reached uncontestability on the other end. But a lack of unanimity on the Court in the middle period, the stage in which some issue or value is in a period of contestation, is a sympom or indication of that state of contestability. The consensus may resolidify around the earlier view of what is uncontestable. Who knows; maybe the Court's opinion, divided though it may be, will contribute to this resolidification, although I rather doubt it. Other times, the consensus will end up forming at the opposite end of the issue. (And perhaps the Court will help here too, although again I am skeptical.)
We won't know where we stand until there has been some kind of new equilibrium reached. But if and when it is reached, and if the social consensus has formed around a new view of what is uncontestable, then we can look back to that divided (and later reversed or dead-ened) opinion as an indication that the Court took on the issue, not so much too early (although we might conclude that it did), but too early to be in a position to settle the issue, or appear to settle it, with any finality. Until that social consensus has arrived, courts will engage in lots of issue avoidance and other exercises of the passive virtues. On some occasions, they will nevertheless reach a substantive decision on one side of the issue or the other. But as long as that issue is still socially contested, there is little reason to think any court decision will be the final word on the subject.
The comments to Gerard's post offer some possible examples and illustrations. I'm not sure all of them work with the little pattern I've offered above. Some certainly do. Others indicate, in line with Michael Klarman's work, that sometimes the state of contestability on an issue can be in one place for the Court and other national elites and elsewhere with respect to public opinion. Brown's unanimity made an important statement about the state of contestation around issues of segregation on the Court and in similar circles, but did not necessarily indicate the same stage of uncontestability in the South. Bowers, Lawrence, the SSM cases, and the contraceptive mandate cases can all be viewed in light of the fact that we are in a period of active contestation on issues of gay rights. And so on.
Nothing terribly novel here. Just food for thought, picking up on the discussion in the comments to Gerard's post.
Friday, February 28, 2014
New York Times v. Sullivan at 50
As the faculty advisor to the Alabama Law Review, I'm delighted to note that the Law Review today is hosting a symposium on the 50th anniversary of New York Times v. Sullivan. The editors did a wonderful job putting together a great list of speakers. We are welcoming Judge U.W. Clemon (ret.), who not incidentally was the first African-American federal district court judge in the state; Judge Robert Sack of the Second Circuit; and Professors Sonja West (Georgia), Mark Tushnet (Harvard), RonNell Andersen Jones (BYU), David Anderson (Texas), and Christopher Schmidt (Chicago-Kent). I'm especially happy that the Law Review, in selecting these speakers, has recognized that the Sullivan decision is more than one thing: it's a speech case, to be sure, and an important press case, and an important case in comparative constitutional law (sometimes accepted, sometimes rejected), but it is also fundamentally a civil rights case, an aspect of the decision that is sometimes omitted. I'm glad in particular that students in and from Alabama, where the case began, have made an effort both to commemmorate this important decision and to spotlight its crucial civil rights aspects. I'm looking forward to a great day and want to praise the students who put this together. If you happen to be down the road enjoying a late breakfast at Rama Jama's or an early lunch at Dreamland, y'all come.
This being a blog, I will also link to a recent piece of mine on institutional actors in New York Times v. Sullivan, which doubtless is flawed but attempts to (1) think about the press, the civil rights movement, and the courts as institutional actors in the case; (2) ask questions about the long-term status of Sullivan as a canonical constitutional case; and (3) offer a puckish point in a footnote about Professor McConnell's excellent recent discussion of Citizens United as a Press Clause case. That point links my interest in law and religion to my interest in freedom of the press, and I believe Prof. West's paper today will take up a similar topic. Given similar concerns about identifying "religion," "churches," and "the press," it may be that church-state scholars can and will have something to add to thinking and writing about the Press Clause.
Wednesday, February 26, 2014
Should A Colleague Review a Colleague's Book (or a Journal Publish That Review)?
I appreciate that asking questions (especially in the titles of blog posts) generally is taken as signaling that the author thinks he knows the answer to the question perfectly well. In this case, to be quite clear, I'm actually asking a question, not making an accusation.
So: Should a professor publicly review a book by a departmental or, in the case of law schools, faculty colleague? Or is the potential or perceived conflict of interest substantial enough to make this a bad academic practice? Of course, I ask for a reason. The latest issue of the Texas Law Review, which I am glad still publishes book reviews at all, features a review that, unless I have my facts wrong, involves one colleague reviewing another's book. The review is quite laudatory; other reviews have been as well, so doubtless the plaudits are deserved. But I admit that seeing one member of a law school reviewing the work of another, especially in a prominent venue, did give me pause.
It's not clear to me that there are any well-known rules about this, at least in the legal academy. I can think offhand of other examples of this conduct, certainly; a few years ago, for instance, two little-known Yale Law School professors engaged in a dialogue about each other's books in the Yale Law Journal. I would admittedly consider the ethical norms and practices of other academic departments a better guide than the practices of law schools, let alone law reviews themselves--although I was surprised that the Texas Law Review didn't simply seek a review by a non-colleague. But I don't know what those norms are, beyond a quick glance at this interesting but non-authoritative piece. Perhaps some of our readers, especially those in the academy but outside law schools, can offer some guidance on what best practices elsewhere in the university are with respect to such matters.
Friday, January 31, 2014
The Contraceptive Mandate Cases: The Looong View
For those interested in the issues or context of the contraceptive mandate cases, may I recommend the new volume of the Journal of Contemporary Legal Issues, a symposium-centered journal published by the University of San Diego School of Law. The issue is titled "The Freedom of the Church in the Modern Era," and its contributors include critics and supporters (sometimes both in the same article) of the general concept of freedom of the church. The articles cover a range of periods and issues, including many discussions of the mandate cases and/or directly relevant legal questions in those cases. Alas, it's not available in PDF form or some other easily accessible format, but the issue is up on Westlaw.
Tuesday, January 28, 2014
Is Criticizing "Judicial Engagement" a "Straw Man?"
The Volokh Conspiracy's move to the Washington Post website is a big deal, and I wish it (them?) luck in the new venture. It seems harder to sign up to offer comments, and in some strange way I miss the comment traffic of old; I also hope the page will be revamped to offer more color. That said, the blog gets more traffic on an off-day than we here do in a year, and its bloggers are prolific, unlike some people I could mention. The move is impressive.
One thing I noticed today is that the VCWP blog posts have captions or sub-heds. I noticed it because a post today by Randy Barnett, titled "'Judicial engagement' is not the same as "'judicial activism,'" has the sub-hed "Critics of George Will and Clark Neily's defense of 'judicial engagement' are attacking a straw man." That phrase doesn't appear in the text itself. That's fine, of course. But I can't quite tell if the post itself is arguing this proposition. If it does, it's wrong.
Part of the problem is that the "critics" referred to in the sub-hed turn out to be one person, Ed Whelan. To paraphrase, Whelan objects to Neily's effort to popularize the phrase "judicial engagement" because he is invested in the idea of objecting to judicial "activism." In this, he is sort of like the New Deal-era Justices who later objected to decisions or reasoning in rights cases that appeared to raise the specter of the Lochner era. I don't know whether Barnett wrote the sub-hed, or whether he had other critics in mind, or what those critics said. But I will take the very minor liberty of treating the sub-hed as putting Barnett's argument more or less as a facial challenge, so to speak. As such, it cannot be right. Clearly there are non-straw-man reason to object to the phrase "judicial engagement" and the effort to popularize it--reasons that apply equally to the phrase "judicial activism" and efforts to popularize it.
"'Judicial activism' was devised to be pejorative," Barnett writes, "but it has little content." (I find the "but" interesting there. Not "and it has little content?") He then goes on to argue that "what 'activism' really means is improperly invalidating a law that is not really unconstitutional." (The first emphasis is mine.) This is to be contrasted with "judicial engagement," which Neily and Barnett supply with a definition. He adds, "Instead of 'judicial conservatism,' which admonishes judges to put their thumbs on the scales to uphold laws, we favor 'constitutional conservatism' in which judges are restrained to follow the Constitution, whether this leads to upholding or invalidating legislation."
Is there a difference between "judicial activism" and "judicial engagement," or between "judicial conservatism" and "constitutional conservatism?" Sure. By definition there is--and I mean that phrase literally. Of course, there would be no difference if you defined both phrases to mean the same thing. And there would be a difference if you called one thing "turkey on rye" and the other "Grabthar's hammer." What it "really means" would depend on the content, not the label. Discussing the definitions is useful, kind of; discussing the phrases is not. Action X is good or bad, right or wrong, regardless of whether you call it, say, the "nuclear option" or the "constitutional option" or "the Corbomite Maneuver." Barnett (or Neily) solves the "little content" problem with "judicial activism" by supplying content. If he does not solve it there, then he sure as hell does not solve it for "judicial engagement." It certainly cannot be right in any terribly useful sense to write: "'Judicial engagement' is both a less pejorative and more accurate label for how a constitutionally conservative judge should act." It is not terribly useful to use one placeholder to define and approve another placeholder; and any pejorative qualities will come from factors entirely outside the "real" meaning of any of these phrases.
So, depending on who the "critics" are and what they have to say, it is certainly no straw man to disdain the use of the phrase "judicial engagement," or "constitutional conservatism," any more than it is to disdain the use of the phrase "judicial activism" or "judicial conservatism." All you have to do is prefer things to words, or grappling with problems and ideas to doing public relations.
I suppose I should add a caveat to my post. If you care about public relations, then you may indeed care about these issues. If you are engaged in advocacy, you may care about them. If you want to be a moral entrepreneur, you may care about them. But certainly caring about them is not an academic or truth-seeking function as such, as I understand those roles. (There is no "truth" about the "real" meaning of phrases like "judicial activism" or "judicial engagement.") An academic might be interested in analyzing those phrases, say as a matter of analyzing what moves or manipulates or crystallizes public opinion, or how phrases take on currency or lose it, or things of that sort; but an academic would certainly not, qua academic, be interested in pushing or popularizing a phrase for purposes that could best be characterized as propaganda. Richard Posner is fond of observing that in the intellectual realm, academics are less likely these days to be moral entrepreneurs. But I don't think he's making a value statement when he says that, and it may be a good thing on the whole that academics are less likely or less qualified to serve as moral entrepreneurs, or that the increase in the stringency and specificity of academic standards may hamper them from doing so.
I think people are entitled to argue about whether legal academics are closer to the advocacy side of things than other academics (at least ideally; obviously lots of academics in other fields are propagandists). They may also argue about whether academics can engage in propaganda (or norm entrepreneurship, or whatever you want to call it), or at least whether they should, and if so subject to what limits. Obviously many individuals engage in academic work and propaganda or political activism. I'm speaking only to the academic side. From that side only, it seems clear to me that there are valid reasons to question the intellectual value of the phrase "judicial engagement," or of the very enterprise of coming up with and pushing such phrases.
Monday, January 27, 2014
RIP Randy Bezanson
Brian Leiter's Law School Reports brings news of the passing of Randall Bezanson, a longtime professor at the University of Iowa College of Law; I'm writing this in transit and don't have the link, but Brian's item provides a link to the statement from the dean at Iowa. I just wanted to add a quick word of tribute. My first, temporary job was as a visitor teaching constitutional law at Iowa. It was a great experience for many reasons, but Randy's presence was high among them. As a colleague he was very helpful in giving me tips and materials for my first time teaching the class. As a colleague he was generous in his time reading a draft paper on our mutual love, the First Amendment, and more than happy to recommend major surgery on the piece. And, as the Dean's message notes, he was always a fun, provocative presence at the lunch table, ready to start things off with a topic or question of the day. I still draw heavily on his writings, especially those on freedom of the press; my latest piece cites him repeatedly and I very much enjoyed his recent print debate with Eugene Volokh on freedom of the press. He was and is an influence, and a friend. He suffered through a long and difficult illness, and doubtless things looked different from close up; but from far away, it seemed as if he managed to do so with his vitality much undimmed. I will miss him.
Sunday, January 12, 2014
Corbin on Abortion Distortions (and What's Missing)
As I said in my last post, it's easier to meet your commitments to blog more if you go the aggregation route! To that end, and because I found it very interesting, I note that my friend Caroline Corbin, who is an excellent and prolific scholar in the law and religion and compelled speech areas, has a new paper up on SSRN. It's called Abortion Distortions; as they say in Shakespeare in Love, "Good title!" Here's the abstract:
Two types of distortions often arise in abortion jurisprudence. The first is distortion of scientific fact. Too often abortion opponents distort medical facts and courts accept those distortions as true. Take, for example, the claim that abortion makes women depressed and suicidal. In fact, no reputable study supports any such causal link. Equally without scientific foundation is the claim that morning after pills like Plan B act as abortifacients. They do not.
The second kind of distortion that occurs in abortion jurisprudence is that the normal doctrine does not apply. Thus, despite the fact that compelling someone to articulate the government’s ideology is anathema in free speech jurisprudence, courts have upheld mandatory abortion counseling laws that force doctors to serve as mouthpieces for the state’s viewpoint. Similarly, despite the fact that for-profit corporations have never been held to have religious rights, several courts have stayed application of the new contraception mandate on the grounds that it might violate the corporation’s "conscience." This abortion exceptionalism is problematic for women and for First Amendment jurisprudence.
I enjoyed this paper. I agree with her point in general, and at least provisionally with her points about depression/suicidal claims and counselling laws; I am still(!) reaching my own conclusions about the mandate cases, although I don't think the corporate Free Exercise claim is as novel or impossible as some critics suggest, whatever limits ought to apply to it, but in any event I take no position on her argument in this section. It's a good, and short, read.
I'm very surprised by one element of the paper, however. This is not the first time that it has been argued that abortion tends to have distorting effects on judicial work and particularly First Amendment cases. It was a rather prominent feature of Justice Scalia's dissent in one of the abortion protest injunction cases, Madsen v. Women's Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., dissenting), in which he wrote, "Today the ad hoc nullification machine [of abortion] claims its latest, greatest, and most surprising victim: the First Amendment." Similar claims have long been made that abortion works a distorting effect on First Amendment doctrine in another abortion protest decision by the Court, Hill v. Colorado, whose soundness will be tested by the Court this week when it hears McCullen v. Coakley. Forgive me if I am mistaken, and by all means correct me, but my quick read and search of Corbin's draft found no references to any of those cases or to the literature discussing them.
Of course Corbin may disagree with those criticisms, and of course the specific doctrinal issues she addresses are different, but I am surprised not to see a reference to them. This is especially true because the idea of some hot-button or significant factual/moral issue shaping, influencing, or distorting constitutional doctrine is hardly limited to abortion. Many splendid articles, including this one by Burt Neuborne, have been written about the "gravitational pull" of race on constitutional doctrine in a variety of areas. My recent (rough draft) article on New York Times v. Sullivan talks about the influence of race and the civil rights movement on that decision, and briefly references some of the literature alleging that abortion has a "gravitational pull" on the law. It seems to me that although a focus on particular doctrinal questions is understandable, there is also much value in focusing on, or at least fitting in and thinking about, how and why such phenomena occur in general and with what consequences; whether it is unavoidable and how; and just how bad (or good) these "distortions" are as a general matter. (There is such a thing, in my view, as overvaluing doctrinal coherence, or accepting its inevitable limits even if it is generally a good thing, or demanding more coherence from the Court than it can reasonably provide given the kinds of issues it deals with and their political and emotional valence.) I like the paper and recommend it to readers, and there is something to be said for modesty in scope. But I still found myself regretting these omissions. I encourage you to read this paper--alongside the other literature on this issue.
A Couple of Thoughts on Blogging
A belated happy new year, although I have posted one thing since January began. A quick apology for blogging so little in the past year and letting my colleagues, both guests and permanent members, do so much of the work. Some of the paucity has been due to personal and professional commitments of various kinds. In general, my not blogging is a net gain for both writers and readers, so an apology is probably unnecessary. But since I still occasionally get kind words from people I meet who say they effectively got to know me through the blog, I thought a word or two were due.
Anyone who has blogged for a long time knows it can be difficult to keep it up. Some of it has to do with the usual peaks and valleys of a person's life, including his writing life. A good deal of it has to do with the heated nature of many discussions and comment threads (including from professors), especially around legal education. I think there are good reasons for that, although it does not excuse absolutely any kind of rhetoric in my view. But heated discussions on any topic are more time-consuming to monitor, which I think one must, and can reach a point of exhaustion (both as to the discussion and as to the individual blogger involved) fairly quickly.
Much of it has to do with a simple desire not to be unduly repetitive. Some people manage to be both prolific and novel on blogs. Others maintain a high quantity of posts by sticking to the aggregation model ("Here's an interesting piece, news story, etc."). I tend to want to read something fully and be ready to comment on it before I link to it, and aside from being too busy to do so in a timely fashion sometimes, by the time I might be ready to post something I think the discussion has moved on and am much less willing to post at that point. And there are certainly many bloggers who don't seem to mind riding the same hobby-horse again and again: who think an issue or position is endlessly fascinating to themselves or others and worth repeating many times, or who get a charge out of high moral dudgeon in general or attacking some real or imagined Internet adversary in particular. And our "service" threads on hiring and publishing are very popular, although I'm not always crazy about them. I don't fall into those categories by way of inclination, and I increasingly think that if you don't have something that's especially worth saying to a general audience, you should remain silent. That's not very consistent with the general model of blogging, unfortunately!
Although this point is sooo 2008, Facebook is another reason. When we started blogging, some of us especially dilettantish or thin-line-between-professional-life-and-everything-else sorts thought we would mix up posts on law and law teaching with posts about how great Hem is, or why Gavin Harrison is such a great drummer, or why Broadchurch is such a funny show, or what have you. But Facebook seems to fulfill a lot of those needs, without either requiring one to blog on such matters for a slightly more professional audience or to flyspeck the post for errors of fact or tone deafness. Professors moaning about how unpleasant grading exams is, for example, is an extremely self-indulgent enterprise, even if it's a natural personal reaction. When law blogs started, that kind of thing was more common in the blogosphere. It has since rightly died down a great deal. (I should say that I got an earful from my students this week about how long professors take to grade exams, how foolishly long the grading deadlines are at many schools, how much it interferes with choosing and dropping courses, decisions to withdraw while tuition refunds are still at full-rate, and how the students themselves must and do meet their own deadlines. They were quite right and I am frequently quite guilty.) On Facebook, however, it's more possible to do that sort of thing (although I don't, I think) without anyone assuming you're engaging in anything other than a first-person description of your own life, or without airing a totally minor gripe to an audience of understandably impatient students. And you can post pictures of cats, and your fabulous meals, and hilarious memes about offensive coordinators, and news of your above-average offspring! Or curse a blue streak. Or joke about shooting your children. Given the long list of lawprof friends that one amasses on Facebook, it may be that this is equally professionally damaging in the long run. (I have only shot my children in laser tag, I should clarify.) But it is marginally safer and more intimate. So I feel free to post half-baked and/or cultural stuff there, or ride the occasional hobby-horse, while saving the most well-worked-out, non-repetitive stuff for this blog. Which means blogging a lot less, as I said. I probably ought to cut down on or cease Facebooking too. But it can be a nice outlet and is very useful for purposes of local political organizing (which Tuscaloosa always needs) and maintaining a sense of local and professional community. Plus, cats and Lane Kiffin.
Anyway, I hope to blog more this year, and I suspect that my work on a book this year (on social class and the American legal academy--write me if you're interested or have some input or insights or experiences) will give me more occasions and energy to do so, but I would also be perfectly happy with extended silences. I suppose I could add that if you miss my brand of nonsense you're welcome to send me a request at Facebook, although I assume those of you with lives have other things to do and those of you without them have already done so.
Monday, January 06, 2014
Happy 50th Anniversary of the Oral Argument in New York Times v. Sullivan
Today is the fiftieth anniversary of the oral arguments in one of the landmark cases in the history of the Warren Court and the jurisprudence of the First Amendment: New York Times v. Sullivan. An Oyez project page with links to, among other things, the oral argument itself is available here.
I usually sit on my draft papers a bit before posting them to SSRN, but given the anniversary I thought it would be a good day to post a newly completed (rough!) draft paper of mine on the subject, despite its obvious flaws. The article is titled Institutional Actors in New York Times v. Sullivan. It was written for a symposium at the University of Georgia School of Law marking the case's fiftieth anniversary. (Alas, I was unable to attend in person; I'm sure I missed a great conference, not to mention a hell of a college town.) The Alabama Law Review will be hosting its own fiftieth anniversary symposium later this year; it's not surprising to me that two states in the Deep South, which figured so prominently in the outcome of the case, have felt duty-bound to revisit it. Here's the abstract:
This Article was written for a symposium held at the University of Georgia School of Law marking the fiftieth anniversary of New York Times v. Sullivan. It has two primary purposes.
First, it examines this landmark First Amendment decision through the lens of the institutional actors that were prominent in the case. Most academic treatments of Sullivan, and of the First Amendment generally, focus substantially on the state and/or public officials. This Article turns its focus elsewhere, to three other key institutions in the case: the press, social movements (in this case, the civil rights movement), and courts--both the state courts and the Supreme Court itself. That institutional focus helps revive certain aspects of the case that are easily neglected over time; helps make clear why the Supreme Court was willing to act so aggressively in this case, both in constitutionalizing defamation law and in insisting on independent appellate review of the facts; and reminds us that the decision was not just about mistrust of government, but was also about preserving the vital role that non-state actors such as the New York Times or the civil rights movement play in monitoring and checking government and contributing to public discourse and social change.
Second, it offers some exploratory thoughts on why, as I think is true, New York Times v. Sullivan has lost some of its luster and canonical status in the intervening years. Sullivan is still obviously a hugely important case, and it has always been subject to criticism. Still, it was once highly and widely celebrated. Now, even among those who are not especially critical of the decision, it is more likely to be met with a shrug than with praise. It is not an object of ongoing political contestation like other landmark cases, such as Brown v. Board of Education; it is simply there. I suggest that Sullivan has undergone a sort of bifurcation that has diminished its canonical status. On the one hand, its broad pronouncements have largely been assimilated into First Amendment doctrine, so that citations to the case are almost more decorative than substantial. On the other, its specific pronouncements concerning defamation law have been submerged in the complex details of defamation law itself, which has returned to the preserve of specialists. To these factors, we can add two others: the direction of First Amendment law itself, with its profusion of fairly schematic anti-discrimination rules; and, relatedly, the general focus in First Amendment doctrine on the government as the central actor, and the relative lack of interest in the specific speakers, institutional or individual, that come before the courts.
Taken together, these factors have made New York Times v. Sullivan a case that continues to be cited for general principles, but that fails to capture the attention and imagination of either constitutional law experts or the public as it once did. A focus on the press, the civil rights movement, and the courts as institutional actors in Sullivan helps remind us of the high-stakes nature of the case at the time it was decided, and the past and present importance of certain institutional actors in our social structure.
Thursday, December 12, 2013
Prof. Niblett on Jeopardy
Friday, December 06, 2013
Mandate-ory Weekend Reading
I'm not offering up all the links here, but those interested in the contraceptive mandate cases should definitely check out:
1) The extensive series of posts Eugene Volokh has put up at the VC this week canvassing most if not all of the issues and angles in the cases.
2) Nelson Tebbe and Micah Schwartzman's arguments on Slate and Balkinization that accommodating the claimants here would violate the Establishment Clause.
3) Marc DeGirolami's post on the Center for Law and Religion Forum's website disagreeing with Nelson and Micah.
Wednesday, November 27, 2013
It's an oversimplication, to be sure. But the title of this post seems to me to be the answer to the question, "How many cases does it take to turn a fan of non-formalist balancing into an advocate of formalist categoricalism?" Those two cases are the contraceptive mandate cases, on which the Court has just granted cert.
The balancing-versus-categoricalism debate in constitutional rights adjudication, which often tracks the non-formalist-versus-formalist divide, is a longstanding debate. (See here for some background.) American constitutional doctrine has gone back and forth between the two. In more modern constitutional legal systems, however, the emphasis tends to be on balancing. It is aided in part by the different textual structure of those constitutions and their rights provisions, which contain both stand-alone rights guarantees (ie., "Everyone has the following fundamental freedoms: . . . freedom of conscience and religion. . .") and explicit balancing clauses (ie., "[The Constitution] guarantees the rights and freedoms set out in it subject only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."). It is also probably undergirded by faith in judges, by the relative homogeneity of those judges and their political views, and by the force of some charismatic judges along the way, notably Aharon Barak (who did not even have the benefit of that kind of textual clarity, or any actual constitutional text at all, to work with). Under this approach, the general legal tendency has been to define the right broadly, and do most of the work at the balancing stage. (Advocates of this approach also frequently favor a similarly broad approach to potential preliminary categorical barriers such as standing.)
Generalizations are just that and should be taken with a grain of salt. But I think it's still broadly true to observe that many legal liberals favor the modern style of constitutional adjudication, believe in judicial balancing, and are less inclined to support categoricalism or formalism as a means of constraining rights claims.
Until the contraceptive mandate cases (and Citizens United), that is. It would be possible to decide such cases by taking a broad approach to the categorical questions and finding that such a right exists, even for corporations, while holding against the corporate plaintiff on balancing grounds. But many of the initial responses to these cases seem to be more formalist and categorical in nature, rejecting a Barakian or Breyereseque balancing in favor of a more formalist up-front exclusion on who (or what) can claim a constitutional right to freedom of religion (or expression, in something like the Elane Photography case) at all. A lot of people suddenly seem fonder of formal categorical exclusions, and more leery of judicial balancing, than they used to!
I admit to some ambivalence here. Skepticism of the judicial capacity to balance rights against state interests is a good thing. Skepticism of Barak's passion for proportionality is a very good thing. And I am apparently not opposed to categorical approaches! But I think balancing emphatically has a role to play in rights adjudication, and I think these cases could be sensibly decided at the balancing level rather than engaging in categorical exclusions at the preliminary stage of the rights claim. For what it's worth, I tend to think that many entity plaintiffs challenging the mandate should lose at the burden or state interest stage of the analysis. I would rather have the decision occur at that stage than by denying the possibility of an entity claim altogether. But I'm still thinking about those issues. In the meantime, I'm interested in what the mandate cases and the reaction to them say at a higher level about fair-weather allegiance to balancing versus categoricalism or non-formalism versus formalism.
Two additional points. First, in response to a comment on FB on this issue, I'm thinking mostly about the Free Exercise (or, under RFRA, Free Exercisish) aspects of these cases, not the Establishment Clause aspects. The Establishment Clause presents its own questions, and it is not always as easy to situate thinking about the Establishment Clause on one side or the other of the categoricalism/balancing divide, in part because of underlying uncertainty about whether the Establishment Clause itself is a rights provision or a structural provision.
Second, there is also a similar reversal or tension on the formalist/judicial conservative side, although again this is a very rough cut. For reasons probably having to do with general priors than with a particular unified legal theory, many people who might be characterized as judicial or political conservatives, who are fonder of formalism and less fond of balancing, are also supporters of a robust regime of religious liberty. Given their fondness for formalism and skepticism about judicial balancing and judicially ordered exemptions, many of them have reconciled themselves over the last 20 years to the Supreme Court's formalist decision in Employment Division v. Smith. Yet they object to the broad application of civil and human rights statutes and provisions like the contraceptive mandate to religious entities. There may be some ways to address this without sacrificing formalism. One is to exploit the requirement that a law be genuinely neutral and generally applicable. Another, of recent vintage, has been to emphasize the quasi-jurisdictional idea that churches themselves are entitled to a broad scope of internal freedom. That worked in Hosanna-Tabor. But how broad should that categorical approach be? Should it really work when applied to for-profit corporations, for instance? (And why, incidentally, once we've gone down that road, shouldn't the formalists re-examine their general rejection of categorical Press Clause rights?) Doesn't it require courts to undertake the kinds of inquiries about "who is a church" that they think courts aren't generally qualified to engage in? Finally, I suppose a third possibility for people in this camp is to take a broad view that everyone, including all sorts of claimants, is ostensibly entitled to bring freedom of religion claims, while dealing with the mess at the balancing stage. Which perhaps puts them closer to the Barak/balancing camp than they would normally want to be; hence the tension on the other side of the debate.
Comments welcome, of course; as I said, this is a pretty rough cut and I don't think it's the whole story, although I do think looking at things this way reveals some pretty interesting methodological tensions. And see also this related article by Perry Dane.
Friday, November 22, 2013
Interesting Somin Post on Federalism and Rights
An interesting post--I think it's by Ilya Somin [see update below], although it appears at Concurring Opinions, which would be unusual for him--on the Elane Photography case. Its basic point, to put it rather briefly and bluntly, is "New Mexico: Love it or leave it." As he writes:
If Huguenin wants to turn a profit in the economic atmosphere the State of New Mexico provides her, the citizens of that state have declared that there are certain business decisions she may not make. The good news for those who want to discriminate nonetheless is that relatively few jurisdictions in this country have public accommodations laws that forbid sexual orientation discrimination. Right next door to New Mexico, Arizona has such laws only at the local level in Tucson and Phoenix. There is also a paucity of public accommodations protections in neighboring Texas and Oklahoma. It should thus be relatively easy for Huguenin to find her way to a place where she is truly free to marry her business practices with her religious convictions.
I appreciate the strong argument that our interpretation of constitutional rights should be influenced by conditions of federalism. For reasons that have been well stated elsewhere, as in this article, I don't think "voting with your feet" is an adequate substitute for or response to the side-constraints on law provided by individual constitutional rights. But I'm grateful for his willingness to make this argument.
[Update: I am told the author is actually Richard Storrow, although given the author's strong emphasis on voting with your feet as a remedy in rights cases, I still think my confusion was understandable.]
Thursday, October 24, 2013
Wheat, Chaff, and Law Reviews
I really thought I could stay out of this Liptak-law-review discussion. I agree that Liptak's piece, with due respect to him, was not great. But there is always a risk that criticizing a piece leads to an over-defense of the current system of law reviews and the scholarship that appears in them. Preserving the baby doesn't mean we need to keep the bathwater, necessarily. There is a lot of bathwater in law reviews!
In any event, what moves me finally to write is Dan Solove's post in (partial?) defense of law reviews, and especially his responses to commenters. Dan writes in one comment:
The issue is . . . whether the peer review system is worth the time and effort to implement in these days where there isn’t a scarcity of publishing opportunities.
Quite frankly, I’d rather spend my time reading pieces I know are good and working on my own scholarship than doing a lot of peer reviewing. I can tell rather quickly if a piece is going to be any good, and I can quickly move on if it isn’t. And if I don’t know whether a piece outside my field is any good, I can ask professors in that field whom I trust or see what pieces they recommend on Twitter and in blogs, etc. . . . Life is short, and I’d rather not spend my time this way, and I bet many law professors think the same.
A commenter writes to chide him for this: "Peer review in other fields is considered one of the things that responsible academics do. Annoying and boring perhaps, but it helps separate the wheat from the chaff, and multiplied over all the people who have to do their own personal peer review every time they are looking for an article saves net time." Dan responds:
I think you’re missing my point. Peer review would matter if there were a scarcity of publishing opportunities. But there isn’t. So why bother putting so much time into front end review when there isn’t scarcity anymore and anyone can publish? Why not devote more time to other things?
The argument that responsible academics just do peer review doesn’t really answer my point about why pre-publication evaluation is important and why post-publication evaluation won’t be sufficient.
People can readily find the wheat from the chaff by looking at commentary on already-published works. Basically, being published just doesn’t mean much anymore, and I being published never was a particularly precise proxy for being good. It has been a proxy better than random, for sure, but not a precise one, and not one I’d rely heavily upon — even with peer review.
I think that most debates about peer review seem to be stuck in a bygone mentality where publishing opportunities were scarce. We’re living in a very different world now.
I agree with Dan that chaff is inevitable in scholarship and sorting is always necessary. I also agree that the lack of scarcity and the availability of venues like SSRN raises interesting questions. But I disagree with much else here. In particular, let me offer two comments.
First, I don't think the inevitability of chaff tells us enough about whether the current system is problematic or not. In particular, we might consider whether the current system overproduces chaff, and what systemic consequences that might have. I can think of several possible negative consequences. It raises the search costs, because of the time and effort involved in finding the few needles in an ever larger haystack. It's true that experts like Dan can do this efficiently, but not costlessly. Meanwhile, the law is full of generalists, especially in the judicial ranks, and the search costs for them have grown. It also increases the potential error costs: the possibility that some reader will give undue credence to a poor or erroneous piece. Even given that there is always lots of chaff and some wheat, we might still have reasons to want to avoid having too much junk out there.
More interestingly, perhaps, the abundance of poorly policed publication opportunities may create or support bad incentives for law professors and the legal academy. I don't disdain theoretical or interdisciplinary work, but neither do I disdain straight doctrinal work. The plethora of publishing opportunities and the poor pre-publication gatekeeping may encourage more professors to do more "ambitious" and less doctrinal work, to focus on articles over treatises or PLI pieces or other doctrinal work. Moreover, because publication is treated as a core part of the job of full-time faculty, and standards of pre-publication judgment (not to mention tenure and promotion standards) are weak, it may lead to or at least enable not just an overproduction of non-doctrinal work, but an oversupply of full-time law faculty altogether, as opposed to adjuncts and other teachers with a stronger ongoing connection to particular practice areas. Perhaps if there were stronger pre-publication standards and a concomitant decrease in the number of seriously regarded publication slots, we would have a smaller, stronger professorial corps, or a more efficient distribution of resources in law schools, both between doctrinal and non-doctrinal professors and between full-time and part-time faculty.
In short, lack of scarcity is not everything. There are still independent reasons to want to separate the wheat from the chaff earlier in the process, and to encourage more faculty to work on more narrow and doctrinal pieces rather than take a flyer on more high-flying pieces (on the view that the piece will surely be published somewhere, and might just be published somewhere great).
I also think Dan shrugs off the point about peer review and related academic work too casually. For the reasons I've offered (and other reasons too, I'm sure)--e.g., the risk of overproduction of chaff and the associated risks of general readers overrelying on poor work--I think there are reasons "why pre-publication evaluation is important and why post-publication evaluation won’t be sufficient." And, both for practical reasons and more abstract, virtue-centered or vocational reasons, I think the commenter is right that services like peer review are a fundamental part of the academic's responsibilities and should not be dismissed as unnecessarily burdensome. Part of the academic's job is to make sure not just that her own work is sound, but that the general body of scholarship in her discipline is sound: that the well is not poisoned or diluted, that some level of minimal disciplinary standards are maintained and enforced across the board, and so on. She should also not want her colleagues, especially junior ones, to spend an undue amount of time on work that need not or ought not be done at all; she shouldn't want her junior colleagues to overproduce poor work, secure in the knowledge that someone will take it, when that scholar could be encouraged at an earlier stage to abandon a poor or unnecessary project and use her time and talents more usefully. I should add that I see no reason to doubt that Dan takes on his full share of these burdens, no matter how wearisome he may find it. But whether it's wearisome or not, it strikes me as serving practical purposes, as ultimately doing a kindness both to one's colleagues and to the overall body of scholarship, and as a meaningful part of the package of rights and responsibilities that make up the scholar's vocation.
Friday, October 11, 2013
Thanks to Colin for telling us about his interesting piece on "The Virtue of Obscurity" in Supreme Court opinion writing, with specific reference to (surprise!) Justice Kennedy. We're glad to have him here. I appreciate that it's a short piece, but let me make a couple of critical or questioning remarks about the piece, if only because I would appreciate hearing more of his views on the subject, here or in longer work.
The questions are related and I'm not sure it matters which comes first. But as a preliminary matter, and without wanting to be too cute about it, I would appreciate getting a clearer definition of what Colin means by "obscure" or "obscurity." He seems to define it mostly as by negative implication, as the absence of qualities such as clarity and specificity. As a matter of everyday language, or even casual professional talk about judicial opinions, I have no problem understanding the term, and absolutely no problem locating it somewhere in the vicinity of Justice Kennedy. In the case of an article that gets some charge out of the counter-intuitive move of praising obscurity, though, I would like to know the author's own definition of the term, and maybe something on how we can tell deliberate obscurity from something else.
Second, and this admittedly is what struck me first, I'm surprised not to see reference to Cass Sunstein's work on judicial minimalism. Again, it's a short piece, and I appreciate that and am glad Colin wrote it, and discussed it here on Prawfs. But I think Sunstein's work on minimalism would be very useful to this project--indeed, his primary work on minimalism focuses at length on many of the same cases--and might add some clarity to the definitional question I asked above. Although in his writing on minimalism Sunstein generally favors opinions that are both narrow and shallow, he points out that these categories are capable of various combinations, and that we can (favorably) imagine some opinions that are "shallow and wide," or "deep and narrow." Others have written even more favorably about those possible categories. Donald Dripps has argued that in criminal procedure, broad but shallow opinions are often highly desirable. In a piece written back when my hair was a different color, I argued in favor of the uses of what Sunstein would, I think, call deep but narrow opinions. Both of these kinds of cases, it seems to me, can be thought of as involving different kinds of judicial "obscurity" in service of different kinds of needs. In short, I think it's probably necessary to say more about the different forms that judicial "obscurity" can take, and the occasions for which they are more or less well-suited.
I suppose there's a third point that relates to the questions I asked at the end of my first point. Sometimes obscurity is necessary, but not for the public. Sometimes it's necessary to cobble together a majority, or a large majority in those cases in which something more than a plurality or bare majority is thought to be important. So before praising Justice Kennedy (or anyone else) for obscurity, we would have to consider whether that obscurity was part of a longer-term project or a concern for the public, or whether it was just a means of smoothing over differences on the Court itself.
Again, notwithstanding or perhaps because of these questions, thanks to Colin for posting on his article.
Tuesday, October 08, 2013
Skipping the Post is Not a Big Deal
A couple of words, if I may, on the widespread, if totally ephemeral, criticism of Justice Scalia, occasioned by his statement in this week's New York Magazine interview* that he only takes the Wall Street Journal and the Washington Times, and gave up the Washington Post because it had become too "shrilly liberal." A fairly standard example, with one important exception, can be found here: http://takingnote.blogs.nytimes.com/2013/10/07/scalias-echo-chamber/?_r=0. Those words are: Big deal. Now let me expand slightly.
1) What should really upset us is not that Scalia gave up the Post, but that he reads the Washington Times, which is a transparently lousy newspaper.
2) He already reads the Journal, which, editorial pages aside, is neither especially conservative nor especially different in terms of the background or perspective of its reporters or editors. Perhaps the Justices would do us all a favor by picking a paper at random from the non-coastal United States and reading that every day.
3) The Post has gotten pretty thin in the past few (say, 15) years.
4) Of course the Post is liberal! I doubt shrill is an apt description, or that it's more shrilly liberal now than it was in the past, but obviously it's a liberal paper.
5) I do believe epistemic closure exists and afflicts some more than others. Perhaps it afflicts Scalia greatly. But if a liberal Justice said he or she read only the New York Times, the Washington Post, and the New Yorker, I doubt half as many people would be calling them epistemically shuttered for failing to pick up the Daily Caller (also lousy, incidentally) or the National Review. (Here, in fairness, is a note of difference between the standard-issue criticisms and Lapidos's piece in the Times: at least she calls out the President for purportedly only reading the New York Times.)
6) This all seems very American and parochial. Maybe the more important question is why all the Justices aren't reading Le Monde, Bild, El Pais, the Guardian, and the Times of London.
* I note that I don't especially think that he ought to have given the interview, or that Justice Ginsburg ought to have given the interview that occasioned headlines of its own this weekend.
Sunday, October 06, 2013
What the Difference Between Clothes and a Fig Leaf?
The question occurs to me after reading this snippet from Richard Posner's new book, Reflections on Judging, which strikes me as pretty minor Posner but still has its moments. The snippet takes place in the context of a discussion of what he believes is judges' "refusal . . . to confront, even to recognize, the challenge of complexity" posed by technology and other challenges:
Many lawyers are technologically challenged, just as the judges are, and so are drawn to the same avoidance techniques that judges retreat behind, while those who know better are anxious about deviating from the orthodox methods of legal argument, or fearful that judges will feel insulted to be spoon-fed appropriately simplified descriptions of the technological background to a case. I can assure the reader that we will not be. What would anger most judges would be a lawyer's telling them that it's time they dropped the pretense that judicial decisions are based on faithful adherence to statutory and constitutional language and to precedent. That's a fig leaf that almost all judges want to continue wearing.
I'm generally sympathetic to Posner's views on such matters and that's the case here, although I wonder whether it doesn't apply more to litigators, especially appellate litigators, than to lawyers in other areas.What I wonder is: If the kind of legalism he's referring to is a fig leaf that everyone insists on wearing, is there a point at which it becomes something other than a fig leaf? It's a truism that constitutional law, and perhaps other forms of law as well, is "just" a constrained or conventionalized form of politics. Is there a point at which the constraints are meaningful and accepted enough that they become more than "just" a concealed or constrained method of doing something else, and deserve to be taken seriously in their own right?
A fig leaf is a form of clothing that, at least in the biblical story, does nothing but conceal--and doesn't even do a good job of that, in God's eyes. Its only real function, in the end, is to reveal its own shameful and ridiculous nature. And yet there are vast industries devoted to taking clothes perfectly seriously, and occasions on which clothes serve a useful purpose. Is law, or the kind of legalism Posner is talking about, especially in constitutional interpretation, closer to the fig leaf or to what we generally think of as perfectly meaningful and heavily rule- and convention-bound clothing?
A couple of ways to think about this come from taking the metaphor seriously and thinking about (or, really, riffing on) the evolution of clothing. First, there is this possibility, which I think is an implicit theme of the chapter from which this quote is taken. Some clothing actually serves a useful function, particularly guarding us from injury--from scratches, freezing, and so forth. Clothing designed to serve that function might look quite different and work much better than clothing that purports to serve that function but really serves no functional purpose, either because it's not functional at all or because it has been designed for some other function. (I have bought some beautiful leather gloves for winter wear, in shops selling them as winter wear, that were largely useless for that purpose.) Perhaps legalism, in Posner's view, is similar. Obviously some very smart people have spent years working on better and better versions of textualism, originalism, and so on. These days some very smart liberals are working on very elaborate versions of the same thing. Some of this work seems pretty attractive. But, like working on a better pair of thin leather gloves, it might still be a massive waste of resources--wasted because it wasn't really undertaken with the underlying function in mind, overinvests in roundabout ways of achieving the actual function, and still doesn't do that great a job. It's like spending millions of hours and dollars working on a really scratch-resistant, durable, temperature-sensitive fig leaf, when what you really need is a decent piece of cloth and a string--or just plain nudity.
Another way to justify all this investment in legalism is more or less the way we justify most of what goes on with clothing. It serves little functional purpose physically speaking, but it does a variety of other things we care about: helping to signify social rank, or to preserve and extend moral norms, or to discriminate between or against different people, or to provide us with pleasure. It helps us to coordinate our actions, too, although it may do so inefficiently or improperly. Serving these kinds of convention can be a function, too, and one that matters a great deal to us, whether it should or not. Even if it should, of course, it can still do so badly, especially when we end up forgetting that we're really serving convention and pretending that we're doing something that's practically functional, or ask too much of those conventions, or hold on to them after they've served their purpose and another end is needed. This, too, seems like a pretty good description of legalism. I suspect Posner has little patience for this kind of justification. I have more patience for it than Posner does, although not all that much more. Certainly, in the final analysis, I am not inclined to be any more romantic about it than I am about the necktie or the codpiece, and I doubt that a good deal of legalism is any less wasteful than your average bowtie or periwig.