Thursday, August 28, 2014
Welcoming Back Jennifer Bard, and a Note
We're happy to welcome Jennifer Bard back to Prawfs. She is the Alvin R. Allison Professor of Law at Texas Tech University School of Law and an adjunct associate professor at the TTU School of Medicine.
Let me say as an aside that in the wake of our loss of our friend Dan, many old and new friends have stepped forward to serve as guest bloggers over the coming year. We're eager to keep what I think of as The House That Dan Built going and grateful that so many people are helping to maintain a fraction of the energy that Dan brought to this blog, along with everything else. And we are grateful to our readers as well.
Wednesday, August 27, 2014
ASU Aspiring Law Professors Conference
A quick note: ASU's annual aspiring law professors conference is coming up on Saturday, September 27. The keynote speaker this year is Paul Caron of Pepperdine. The conference announcement, which can be found here, includes the following description:
Designed for Visiting Assistant Professors, Fellows and others who plan to go on the academic teaching market, but valuable to anyone considering a career as a law professor.
- Learn to succeed in the entry-level law teaching market
- Obtain an insiders perspective on the appointments process from faculty with extensive hiring experience
- Participate in a mock interview or mock job talk and gain feedback from law professors
I had the pleasure of speaking at the conference a couple of years ago. It's a well-designed and, I believe, helpful event. It will certainly help you if you're in the market; it may also help you decide whether you want to be in the market or not.
Bloom, "Against Empathy"
There has been a long debate in law about the role of empathy in judging, a debate that gained new prominence during and after the nomination of Justice Sonia Sotomayor. Those who are interested in that debate may enjoy a new essay in the Boston Review by Paul Bloom titled "Against Empathy." There are a host of responses, with a reply by Bloom. He defines empathy as "the process of experiencing the world as others do, or at least as you think they do." A couple of snippets:
I’ve come to realize that taking a position against empathy is like announcing that you hate kittens—a statement so outlandish it can only be a joke. And so I’ve learned to clarify, to explain that I am not against morality, compassion, kindness, love, being a good neighbor, doing the right thing, and making the world a better place. My claim is actually the opposite: if you want to be good and do good, empathy is a poor guide.
* * *
Certain features of empathy make it a poor guide to social policy. Empathy is biased; we are more prone to feel empathy for attractive people and for those who look like us or share our ethnic or national background. And empathy is narrow; it connects us to particular individuals, real or imagined, but is insensitive to numerical differences and statistical data. . . . In light of these features, our public decisions will be fairer and more moral once we put empathy aside. Our policies are improved when we appreciate that a hundred deaths are worse than one, even if we know the name of the one, and when we acknowledge that the life of someone in a faraway country is worth as much as the life a neighbor, even if our emotions pull us in a different direction.
I encourage you to read the essay and the responses. I would note one pet peeve of mine about the empathy debate in law: the frequent, implicit assumption that empathy for the plight of another ought to entail legal victory for that claimant. I tend to believe that empathy is useful in judging, both because it may aid in understanding a claim and, sometimes, the wider effects of a legal ruling, and because it may enable the empathetic judge to speak more clearly and effectively to the losing side. But there is no necessary connection between feeling someone's pain and ruling in favor of his or her claim.
Tuesday, August 26, 2014
Checking in With the Episcopal Chaplain at Yale
The New York Times has this interesting letter to the editor today, responding to an op-ed from Deborah Lipstadt the other day about anti-Semitism in Europe. Without comment, I offer it in full:
To the Editor:
Deborah E. Lipstadt makes far too little of the relationship between Israel’s policies in the West Bank and Gaza and growing anti-Semitism in Europe and beyond.
The trend to which she alludes parallels the carnage in Gaza over the last five years, not to mention the perpetually stalled peace talks and the continuing occupation of the West Bank.
As hope for a two-state solution fades and Palestinian casualties continue to mount, the best antidote to anti-Semitism would be for Israel’s patrons abroad to press the government of Prime Minister Benjamin Netanyahu for final-status resolution to the Palestinian question.
(Rev.) BRUCE M. SHIPMAN Groton, Conn., Aug. 21, 2014
The writer is the Episcopal chaplain at Yale.
Monday, August 25, 2014
Pity the Non-Donor
Eric Posner's recent co-authored article, An Empirical Study of Political Bias in Legal Scholarship, has attracted a good deal of attention. On his blog today, he writes an interesting follow-up, asking whether Republican law professors are cited more often than Democratic law professors and answering, "yes." He offers some speculations about why that might be. Intuitively, I tend to think the second reason he offers--"Because they must find someone to criticize in their papers, [liberal law professors] end up citing Republicans frequently. Citations by Republican law professors are divided among the larger pool of Democratic professors, so on a per capita bases the latter are less frequently cited than the former."--is more convincing than the other three possibilities he raises. But that's just intuition.
More interesting still, to me, is Posner's finding that "non-donors are cited less often than both Democrats and Republicans are." He speculates that "articles with a political bent attract a greater number of responses, and so professors who do not write them are less frequently cited." That hypothesis is quite similar, I think, to the explanation he ventures above about why Republican law professors are cited more often than Democrats.
Friday, August 22, 2014
An Update on the "Satanic Black Mass" Story
For students of law and religion, not to mention the much larger audience that likes stories about replevin, the story about the planned Satanic "black Mass" at the Oklahoma City Civic Center Music Hall has been very interesting. Here are some updates about this controversy. In short, the organizer of the event has returned (or said he has returned) what he said was an authentic piece of the Catholic host that he intended to use at the Mass. The story quoted at the MoJ cite adds: "Archbishop [Paul] Coakley has made repeated requests for the city’s leaders to cancel the satanic ritual in a publicly funded facility. 'I have raised my concerns … and pointed out how deeply offensive this proposed sacrilegious act is to Christians and especially to the more than 250,000 Catholics who live in Oklahoma.'" I cannot help but wonder, on the basis of this and similar statements that he has made, what Archbishop Coakley's position is on the Bronx Household of Faith case.
Thursday, August 21, 2014
A Somewhat Interesting Question from a Terrible, Terrible Writer
At Slate, regular higher education writer Rebecca Schuman raises the question whether a professor should ever assign to students a book that he or she has written. Her answer: No, never! Except, yes, sometimes. And adjuncts probably should do so, because the mistreatment they receive matters more than the mistreatment that students receive.
I find the question an interesting one. But, I readily confess, I link to it here mostly to make publicly a point I've made more privately elsewhere: Rebecca Schuman is, by leaps and bounds, the worst writer on higher education I've ever read. That's not a critique of her views or her complaints about the university, only some of which are wrong. Nevertheless, taken on the whole, article for article, screed for screed, she is just awful--so consistently "love-to-hate" awful that I almost can't get enough of her work. This is not true for everyone--I wouldn't say it of Eric Jarosinski, for example--but in this case I would say that the fact that Schuman is leaving the academy for web journalism says far more about web journalism than it does about the academy. Nor does her regular column at Slate speak well for Slate, which used to be quite good.
Wednesday, August 20, 2014
Response(s) to Rick Garnett's Essay on Freedom of Religion and Freedom of the Church
As Rick noted here a while back, he has a piece up at the Liberty Law site on "Freedom of Religion and Freedom of the Church." There have been several interesting responses to it by Donald Drakeman and John Inazu. Here is my own, less interesting response. It was a pleasure to read and respond to Rick's essay.
Does it Even Matter What Steven Salaita "Tweeted?"
I have followed with interest the various stories and blog posts about Steven Salaita. Although there are aspects of Mike Dorf's initial post on the subject that I am uncomfortable with, I agree with him that there are some possible differences between firing and not hiring an academic candidate. We shouldn't be sanguine about those differences; refusing to hire a candidate for the wrong reasons--not liberal enough, say, or too liberal--is also a dereliction of academic duty. And we should be very cautious about "collegiality," without treating it as irrelevant. But there are, I think, potential differences between the kinds of factors that are relevant at one stage and those that are relevant at another.
I agree that the Salaita case raises serious concerns about academic freedom. I'm less convinced by some of the confident descriptions of the process and its legal consequences, but I haven't read every document. To my surprise, moreover, I find some aspects of the argument that some of Salaita's tweets have been overread persuasive. (We should always be cautious about confidently assuming that some statement is really a "dog whistle," as long as it can be read otherwise. I find it unfortunate that this seems to be an inconsistently applied principle.) I should add that that's a far cry from admiring the heated, obnoxious rhetoric that Salaita seems comfortable with in his tweets. In my view, which admittedly may be an outlier, most academics should be embarrassed to tweet at all; and all of them should be embarrassed to tweet like that. (The post I link to promises to go on to demonstrate that "Nelson's authority to speak about Salaita's termination"--note the assumption--"is compromised." I assume that most of the serious critics of university's treatment of Salaita consider that part of the argument irrelevant, if not damaging to their arguments.)
What I'm moved to wonder is how relevant much of the later discussion has been. The letter to which Dorf is a signatory describes Salaita's tweets, in rather general terms, as "statements on a matter of public concern," as as the voicing of views on "complex matters of public concern," as "participat[ion] in a rich, and at times heated, climate of debate on the issue of justice in the Middle East," and so on. Some critics, such as Steven Lubet, have criticized the letter writers and others for "soft-pedaling the anti-Jewish sentiments in [Salaita's] tweets." In addition to pointing to the post I linked to earlier reading those tweets differently--which, as I said, I found somewhat persuasive--critics of that position have ended up in a lengthy discussion of Hamas, the situation in and around Israel and Gaza, etc. And I wonder: Does it matter?
As I understand the strongest statement of the position that has been offered, this is a matter of academic freedom, pure and simple. On this view, Salaita was fired, or refused a process that should have led to his employment, and not just "not hired." The firing was a result of the content and viewpoint of his speech on Twitter. That is a violation of basic principles of academic freedom. Salaita's hiring itself, based not on his tweets but on a review of his scholarship and, presumably, his teaching and service, indicate his suitability for the position. If that's the case, it seems to me that what Salaita said is basically irrelevant. Provided that he was engaged in a "rich, and at times heated," debate on "a matter of public concern," and that he was fired, in violation of academic freedom, for doing so, why should we care whether his tweets were anti-Israeli, anti-Zionist, offensive, or indeed anti-Semitic? The question should be (almost?) entirely irrelevant.
On this view, it does not matter--except for public relations purposes--that the letter writers offered a rather anodyne description of Salaita's tweets. Nor--except for public relations purposes--would it matter if the letter writers had written instead, "A number of critics have said that Salaita's tweets trade in anti-Semitic tropes and imagery, are indifferent if not gleeful about doing so, and are enthusiastic in displaying bloodthirstiness about the people he reviles. We don't care, and we're outraged that he was fired."
It seems to me that if we take seriously the criteria applied by Salaita's defenders--and not without reason, if we care about academic freedom--it would hardly matter if Salaita had instead "tweeted" (leaving aside the question why grown-ups, let alone grown-up academics, bother with such an activity) any of the following:
"I'm beginning to think the Protocols of the Elders of Zion are right."
"One, two, a thousand Auschwitzes!"
"Obama is a traitor and a dictator. Time to exercise some Second Amendment remedies, NOW!"
"Maybe if the girls on campus dressed with decency and stayed off the booze, there would be fewer rapes at this school."
"If those monkeys in Ferguson want to burn down their own town, let them! Why waste the rubber bullets?"
Of course most people will find these statements objectionable. But that's hardly the point. They are, and the letter writers would describe them simply as, part of the rich climate of debate on matters of public concern. It's strange to me, then, how quickly the discussion in the comments has moved to questions about the nature and motivations of Hamas, whether it bears moral agency for the murders it commits, and so on. It should matter no more than it would matter whether Salaita, or some other academic, believed and argued that women's indecency and promiscuity is a major contributing factor to campus sexual assault, or that black criminality is a greater problem in Ferguson than police brutality. And, given that the real issue is one of academic freedom, the letter writers would surely be within their rights to describe one set of beliefs and arguments as abstractly as they describe any other.
One last note: an interesting comment on the Faculty Lounge wrote, in response to a question whether it would matter if Salaita were, instead, a Grand Wizard of the KKK who concealed his membership until he was hired, "[T]here is obviously a fundamental difference between holding racist ideas and acting upon them, just as there is a fundamental difference between engaging in terrorist acts and expressing sympathy for them. No one would argue academic freedom requires hiring either a Grand Wizard or a terrorist." That may be right, but note that this response assumes that the question is one of hiring, not firing. That is not what the question to which he was responding said. Moreover, the position of Salaita's defenders, or many of them at least, is that Salaita was hired, and now is being wrongfully deprived of the academic job to which he is entitled. I assume the proper response in such a situation, at least according to the arguments I have read so far, is that, at least depending on the nature of the activites he engages in, of course a qualified academic who is hired for a position and who also turns out to be a vocal Grand Wizard of the Klan should not be fired for that reason. And of course a suite of responses to such a dismissal is required, including protest and, for some, a refusal to participate in any events at that university.
Monday, August 11, 2014
Epstein and Bagenstos on Title II
I have been reading a great deal this summer on and around the Hobby Lobby case and its longer-term implications. I want to spotlight, in particular, two articles in the most recent issue of the Stanford Law Review, which features a symposium on the fiftieth anniversary of the Civil Rights Act of 1964.
The first is by Sam Bagenstos. Titled "The Unrelenting Libertarian Challenge to Public Accommodations Law," its abstract reads:
There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in places of public accommodation, was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Essay begins by discussing the controversy in the Reconstruction and civil rights eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the controversy was discussed in the earlier era in terms of civil versus social rights, and in the later era in terms of property, contract, and association, the same fundamental concerns motivated objections to public accommodations laws in both periods. The Essay then turns to the current controversy. It begins by discussing Rand Paul’s 2010 comments questioning whether public accommodations laws are consistent with libertarian principles as well as the harsh response those comments drew from prominent libertarian commentators. It shows that Paul’s libertarian opponents disagreed with him only on pragmatic—not principled—grounds. The Essay then turns to an analysis of Boy Scouts of America v. Dale and of recent developments that promise to undermine the expressive-commercial distinction that has kept Dale from threatening the core of public accommodations law.
The second is by Richard Epstein, titled "Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right." Epstein's abstract reads:
On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to suppress the free entry of firms that would otherwise target minority customers in competitive markets.
The subsequent expansion of Title II’s nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.
The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.
Both articles are excellent and, as their authors recognize, highly relevant to the issues raised and presaged by Hobby Lobby. I do question the framing. I don't think all questioning of the expansion of the number and reach of public accommodation laws, or all views that hold that there must be some room within those laws for religious accommodation, can be described--or labeled, and having been labeled, dismissed--as libertarian. For various reasons, however, some sincere and some more strategic, those who reject this framing, and whose accommodationist leanings in this area are distinctly a minority view at present, have either held back or not fully thought through their own views. I think the time in which they could hold back has passed. If they don't want the entire discussion to be framed in terms of libertarianism vs. anti-libertarianism, they are going to have to speak up. When they do, they will have to engage with both of these fine articles.
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.