Friday, April 17, 2015
No Country for Old Men: Blogging After a Decade
On this tenth anniversary of Prawfsblawg, I'd also like to think and talk a little about how blogging has changed in that period, at least from the perspective on one blogger. My answer is " it has changed for the worse," but I admit up front that much of this has to do with my own experience, and the simple fact of doing it for ten years.
My assumption when I started here at Prawsfblawg was that I would have a potpourri of subjects. Certainly I would talk about legal questions, especially those within my field of scholarly study. Certainly there would be a good deal of discussion of current events, generally legally oriented events, and the posts would sometimes be on the politics or substance of the issue itself and sometimes would be confined to legal analysis. And, as I noted last week, I assumed that there would be a good deal of discussion about the life of the law professor. I thought--and I think I wasn't alone in this--that I would also write about pop culture. I love music and am a more-than-occasional TV addict (House at the time, Archer now, and always the band Porcupine Tree and its leader Steven Wilson); I figured there would be fun opportunities to talk about and recommend various movies, TV shows, and bands that I loved. That was one of the main motivating factors for me in deciding to join the blog. Finally, I figured there would be opportunities to promote things I was working on and/or to share works in progress as they developed.
A lot of that didn't happen for long. (Not the self-promotion: that always happens. Did I mention that Administrative Professionals Day is coming up, especially if you're looking for a nice gift?) Pop culture was the first to go. Back when I blogged a lot it was squeezed out by other subjects; it also turned out I was less motivated to write this stuff than I thought, and to some degree worried about having too many voices or not being "serious" enough. I was often too deliberate to blog about current events: the pace of the blogosphere is such (or at least feels that way) that if you don't jump on the topic right away or spend too much time trying to come up with a definitive post, you end up feeling as if it's already a cold topic. Similarly with writing about scholarship, especially about new draft of published articles by others, which I also anticipated doing a lot. I've never been entirely comfortable just saying "read this"; I prefer to add description and especially analysis and some judgments about the piece and won't do that until I've read most or all of it. So I was always falling behind on that front as well. I envy the aggregators, who have locked in a position in the blogosphere that enables them to do useful things (especially Larry Solum's blog) without generally requiring a deep reading. With politics, I got the sense that over time those who were most likely to blog about this subject consistently were either sufficiently motivated by partisanship or ideology to want to keep doing it, or had some pet issue or hobbyhorse that they would gladly ride into the sunset, no matter how often they had ridden it in the past. I answer to neither description, and again there was the problem of blogging substantively about the issue quickly rather than dawdling.
Writing about law school itself, and the life of the law professor, has proved especially and increasingly difficult in the past few years. I certainly wrote many posts on law school issues at the height of the economic collapse, including the law school crisis, around 2010 to 2013, give or take (and note that I got to the party late, although not incredibly late). I'm glad I did, on the whole. Certainly law professors are obliged to stay current on these issues and take responsibility for them. That is true even when the online conversation is less than ideal.
That said, it was a very "hot" topic, and one with a large number of deeply committed, often angry commenters and writers of their own blogs. Dealing with that, and especially administering comments so they weren't overwhelmed by nastiness, or letting the conversation go on without you even if commenters were insulting you--or others on the comment thread--takes some fortitude and energy, and I did not and do not have enough of either quality. The discussion was full of people eager to tear strips of one another, folks who strongly believed that if you're not with them you're against them and are ready to fight over the least departure from their position, people who repeated themselves ad nauseam, and windy predictors of imminent disaster who, like the leaders of apocalyptic cults, were constantly (and silently) revising upwards their predictions. Dealing with these challenges is a moving target: talk about law schools without talking about what and how they teach and one person calls you names; talk about teaching and another calls you names for not focusing on the jobs; focus on the jobs and someone else accuses you of deliberately covering up talk of scholarship and its problems.
I still read a lot of blogs and blog posts on these issues, including some whose writing I find vicious or overdone or self-parodic. Some of them have gotten much weaker in content, and I can usually limit myself to the headlines while avoiding one more sarcastic personal attack on this or that person. But both a sense of academic duty, and respect for those who keep studying and writing about these issues--including some I generally disagree with or find obnoxious--have committed me to continuing to do so. But I don't have to write about it myself if I don't want too, and generally it's not worth it.
Then there is the question of anonymous commenters, especially on this topic. My position used to be fully supportive of anonymous commentary, with the caveat that the less identifiable a person is, for instance because he or she doesn't use a clear and consistent pseudonym, the more one can and should discount what that person is saying. I was not inclined to get rid of comments altogether and questioned the decision of some blogs to do so, when the exchange of commentary and views is so much a part of the blogosphere. Now I am much more comfortable closing off posts to commenters--there are plenty of other places they can talk, and those people who get strangely outraged by being excluded or think they have some kind of right to comment on someone else's blog are not worth talking to anyway. If the post in the least touches on law schools, I am almost certain to do so. Beyond this, moreover, the level of nastiness among anonymous commenters is today very, very high. Not only anonymous commenters, of course--some people come pretty close to this level despite using their own names--but especially them, and it is more irksome coming from them.
The usual justification offered by these individuals is that they blog anonymously to avoid any job consequences. I think this is one part true and three parts bullshit. I respect the general concern that an employer might punish an employee who writes innocuously on some subject, and the desire to comment despite that--hence the anonymity. But the possibility of avoiding this problem by commenting anonymously is not the same thing at all as the question of how one writes as an anonymous commenter. Plenty of anonymous commenters are either total jerks--hostile, combative, vicious, personal, sometimes much worse--in real life or feel some motivation or latitude to be jerks online. (Really, though, there is no such thing as an online jerk. If you're a jerk online and part-time, you're a jerk, period.) It's one thing to sympathize with someone who says that if not allowed to comment anonymously, he or she will be subject to arbitrary dismissal by an employer even if the comment is innocuous, or civil, or tough and brusque but fair. Obviously, however, the understandable "employment concerns" justification doesn't apply to those people who think anonymity gives them the freedom to behave like assholes, because they're angry or just because they can. Some of them say things that no sensible professional (and they often claim they are professionals) would say under his or her own name out of concern for besmirching his or her professional reputation. If they did write in this manner under their own name, the firing would be for very good cause. They overheat or ruin perfectly reasonable conversations and hurt the whole online discussion.
I am willing to learn even from them, and it's certainly true that an unnecessarily hostile and personal comment may nevertheless offer a valid criticism; it should not be disregarded just because the writer is unpleasant. I've tried to take some of those criticisms on board and I still at least peruse some blogs by anonymous writers (though not many, and the quality of their work and certainly their level of basic decency is often very low.) But I am more than happy to block a comment, ban an asshole commenter from the site altogether and permanently, without multiple warnings and despite their arguments that they didn't say anything too terrible, and so on. I have come closer to Dan's aggressive position, although I still think it was too aggressive and that he often erred by pursuing fights with these individuals or threatening them before finally blocking them. Their rationalizations for being anonymous and uncivil are generally weak, self-serving, and dishonest. The truth is that they act like assholes because they like it. I am more than happy to let them have no part in the conversation at my blog and to monitor the comments for such people, kill their comments, and kick them off. I'm not inclined to reveal their identities, and I definitely am not fond of the idea of threatening to reveal them without following through. But I don't think they have any right to anonymity or to any time or space on my blog, and frankly I think that in a few cases the legal profession would be better served if their identities were revealed. I certainly have no interest in playing to this particular gallery, flattering them, or basking in their praise; would that this were so for some other writers.
Their rise had some good effects for legal blogs, I think. Again, some of their criticisms were apt; some (but far from all) of the work they did on the law school crisis was good and revealed new issues and arguments; and they encouraged others to acknowledge and think or write about these issues. They were sensitive to blog posts that went too far in being self-serving or lacking a sense of self-awareness about the "First World problems" aspects of blogging about one's life as a law professor, and although they have always gone overboard on this front, I cannot say all the chilling that has taken place around this subject is a bad thing. But the overall effect has been a swift coarsening of discourse and rising of temperatures in the legal blogosphere. This too is one reason I blog less.
Another factor is the rise of alternative media. Many of the things I enjoy writing about--especially pop culture, but also current events and politics and even legal issues--I can do at Facebook for a large but more selective audience. That takes some of the winds out of my sales as far as blogging is concerned. I despise Twitter. Any medium that limits posts to 140 characters, that features endless arguments based more on invective and gotchas than on reason, that plays to the writers's own supporters and their collective priors and prejudices, and that in many cases mistakes tweeting for engaging in political action is not something I'm interested in. But it has certainly given the blogosphere a run for its money and many law profs have taken advantage of it. Still, the existence of Facebook, at least, gives me an imperfect alternative to blogging and all the tsuris that it involves. And more generally, the whole environment of online discussion and "journalism" has gone downhill, in my opinion. I will not bother enumerating the usual complaints. But I find I am happier and wiser, and often have smarter answers to current public policy or political questions, if I read Marcus Aurelius or Herbert Wechsler or Noel Annan than if I read the latest clickbait or political junk from Gawker, TPM, The New Republic, The Atlantic, Raw Story, etc.
Finally, there is the simple, happy fact of having done this for a decade and having grown older. Unless you have more energy than I do, or are a hobby-horse rider on some issue, blogging is a young person's sport. Two kids, and five operations in the past eight years with three more likely in the next couple of years, have slowed me down some. Service obligations go up the longer one is at the university, and in my case some local political and university commitments have also taken up more of my time. Although I like writing about law and about life as a law professor, my slight growth in seniority, if it is not generally apparent to me, makes me more hesitant to write some things, at least if I am going to criticize particular junior scholars for, e.g., making overinflated novelty claims in article abstracts. Mid-career life as a law teacher has its interesting elements and some of them are worth writing about--for example, the degree to which teaching and dealing with students, always an important and enjoyable part of the job, becomes more important, involving, and moving over time. But on the whole I have written many posts about many aspects of law prof life and I don't want to repeat myself endlessly (a little is fine!) about these subjects. Journalists find some typical breaking news stories exciting the first few times they do them but eventually wear down on general-assignment daily stuff that they've done a hundred times before; the thrill is gone. One can feel that way about blogging too. I admire those whose energy and commitment has stayed high for a long time, but I'm not one of them.
All this has left me somewhat dispirited about blogging, especially given my dissatisfaction with online discussions, "news" sites, and so on altogether. No doubt some of these concerns and other factors, such as poor health, are personal to me alone and have nothing to do with broader trends or predictions. Others are more widespread, however, and so may suggest forthcoming changes, or an absolute decline, in legal blogging as a whole. I'll come back to that issue in two weeks. In the meantime, it would not do to offer up such a gloomy post without saying how much I have enjoyed being here for the past ten years, how much I have learned from others (including anonymous commenters!), the pleasure I've occasionally gotten for writing something that people found useful or interesting, and all the other benefits of being at Prawfs.
UPDATE: A correspondent, who had some kind words for this post, points out to me the irony of calling the post "No Country for Old Men" when women face many of these issues in spades. For what it's worth, I did have some concerns about this when I fixed on this title, although I decided that the title was a good one and I didn't want to change someone else's writing. The correspondent is right, though, of course, both that women who blog, including law professors, regularly have disproportionate additional claims on their time (in my case that is supplied by the medical issues; without them I surely would have been willing and able to blog more in recent years), and that many (not all, in fairness, but still far too many) of those anonymous commenters who have a self-indulgent habit of nastiness are more than happy to express that nastiness in highly gendered terms. One more reason to doubt that "I worry about employment consequences" is a full justification for anonymous commentary, or at least for its content; and one more reason that one should have no compunctions about scrubbing one's own space of objectionable comment.
I should also add something that I meant to put in the post: I don't comment anonymously and, as I've written here before, I think that on sites or discussions having anything to do with one's academic profession, law professors--tenured or otherwise--should not blog or comment anonymously. I suppose every rule has exceptions, but I would treat this as a strong presumptive rule. Given that we are paid to write and speak on legal issues, and that as academics we have some more general responsibility or interest in writing about academic matters more generally, I think we should do so under our own names, period, if what we are writing about has anything to do with academic matters. Anonymous commentary by academics on academic issues, to me, seems inconsistent with academic duty or accountability. Of course, one may choose not to blog or comment at all if one worries about the consequences of doing so under one's own name.
Thursday, April 09, 2015
"The Religious Geography of Town of Greece v. Galloway"
I have a new paper up on SSRN. The article, "The Religious Geography of Town of Greece v. Galloway," is forthcoming in the Supreme Court Review. Two notes:
1) Although I take a position on the case itself, the main point of the paper is simply to urge law and religion scholars to make greater use of the literature on geography, and specifically on the geography of religion. Scholars elsewhere in the law have done very interesting things with geography; indeed, the paper was inspired by a talk by Richard Thompson Ford, who among other things wrote an important paper on the relationship between law, geography, and race. Some writers on law and religion have been similarly influenced by geography, and influential in turn: I was particularly indebted to various articles by Adam Samaha, Richard Schragger, and Mark Rosen. But I think church-state law--which often involves matters of jurisdiction, sovereignty, scale, and other matters for which geography is relevant, and whose leading metaphors, such as the "wall of separation," often betray the importance of space and place in this area of law--is especially open to geographical analysis, and that much more work of this sort can be done in our field. In addition to the book by Roger Stump that I linked to above, there is quite a fertile literature on the geography of religion, including its impact on the history of American church-state law, as in this book, and its contemporary relevance, as in this book. Whatever my colleagues think of my answers, I hope they will do more to make geography an important element of the questions they ask.
2) How pleasant it was to turn to a nice, uncontroversial area of church-state law! Compared to the heated current controversies over religious accommodation, working on legislative prayer felt like a trip to the spa. I have a small, in some ways tentative piece on the Indiana RFRA debate coming out in Commonweal Magazine; the online version is here. As with the Galloway article, I take a position in this piece, but for the most part my own preferred resolution is secondary and I make clear my view that a variety of reasonable positions and resolutions are possible. (That this is so is, to me, one reason, although not a dispositive one, why we should be open to the notion of judicial balancing here.) The main topic is my deep disappointment with some aspects of the public debate so far, which has exhibited all the subtlety, care, and calm that one would expect of a discussion that has played out on Twitter and the many online sites whose main purpose, other than generating clicks, is to rally the already-persuaded.
Wednesday, April 08, 2015
New Tulsa Law Review Books Issue
Thank God for the Tulsa Law Review, which is carrying on the long tradition of running book reviews in legal academic journals. As I've complained before, fewer law reviews are doing so these days. And it's too bad. That's especially true because it seems to me like an unusually fertile time for law books, and thus for book reviews. Notwithstanding this post, I think a lot more books are emerging from the legal academy these days, both with academic presses and trade presses, and more and more from relatively junior professors (who, having come through doctoral dissertations or fellowships, are not exactly starting from scratch anymore). I'm delighted, and there's a lot of good stuff to read these days. In many ways, it's much more exciting than anything happening in the law reviews. Go figure. If nothing else, law reviews that maintain web supplements ought to be using that space to include more book reviews, by profs and students. Thank goodness some new sites are filling in the gap a little. In the meantime, kudos to those major journals--Michigan, Harvard, Texas, BU in a slightly different ways, and a couple others--that are carrying on the tradition, and I hope more places will join them, cite counts be damned.
Tulsa's annual book review issue format is fairly new and professors Ken Kersch and Linda McClain are running it. It's terrific, and the new issue is very interesting, with great books and great matchups of book to reviewer. Here's the table of contents, with links to PDFs of the reviews themselves. Full disclosure-cum-sales-tactic: There's a review of my book, First Amendment Institutions, which makes a lovely gift for Administrative Professionals' Day, in the issue. The book is what it is, but the reviewer, John Inazu, is top-notch and a hell of a book author himself.
Ten Years With Prawfsblawg
Thanks to Howard and others, including some original Prawfsblawggers, for leading off our anniversary month. I am personally stunned--stunned and delighted? stunned and depressed? stunned and old? well, let's just stick with stunned--that it has been that long.
It's difficult to spend any time being retrospective about Prawfs without ending up reflecting on two or three main subjects. First, last, and always is our friend Dan, whose idea, vehicle, and labor of love this blog was. Second is pondering what has changed about law-blogging in the last ten years, especially the last four or five. And the third, not to be too grim about it, is whether law-blogging has much of a future.
I find the second question most interesting. I have had doubts in the last couple of years--not so much about blogging's future in general or about its future, although I have been pushed to think more about this lately, but about its role for me certainly--and about the nature, quality, and value of online writing altogether. That is one reason I have blogged less lately, although there are other and better ones. But I'll try to say more about this question over the next few weeks, as--I hope--various other Prawfs folks also chime in with some reflections on the blog and their experiences with it.
This leads me back to Dan in two ways. The first is simply to note that when Prawfsblawg started, it very much reflected the people who were on it and their particular stage of progress through academic life. Many of the then-popular, and in some cases still-popular, blogs were aggregators; some were subject-specific; the Volokh blog, most of all, was substantive but catholic in subject matter. (Definitely a small "c.") Prawfs was closer to the VC in writing on various subject matters rather than aggregating or being subject-specific. But we were also interested in writing about what life as a law professor was like: what it is like to look for a teaching job, to teach, to do your first or third class prep or to tear up your first few years of notes and try to start again, to look for hot topics for research, to seek some notice, to seek tenure, and so on.
I suppose doing this all on a blog constituted a topic of its own: how to do these things and talk about them, how to seek a public career in public, to navigate a relatively new online world without steering into the shoals too many times. All this was then a safer topic than it is now. Although I take some issue with this and think there is surely room in the vastness of the blogosphere to talk about life as a law professor, I appreciate the reasons this has rubbed some readers the wrong way, as a kind of cavalcade of first-world-problems. That became more viscerally apparent as the legal economy suffered and students and recent graduates along with it. And although, again, I am inclined to push back against some of this, or to simply write about what interests me without regard to those potential objections, I have also over the years found many of those criticisms instructive, in bulk more so than with regard to specific comments and criticisms, which ran the gamut from serious constructive criticism to simple snark. I'm grateful that I had the occasion to write about some of these issues and experiences before the online environment became more toxic. They were interesting topics to me and proved to be interesting to others. Junior professors today have less latitude to write online about what they are experiencing and learning. This too, mind you, is a first world problem, real but not really all that important in the scheme of things.
On such matters, Dan was an interesting mixture of ambition, energy, and guilelessness. He loved what he did: loved his students, loved adjusting to teaching (and I think it was an adjustment), loved pursuing his ideas and getting excited about those of others. It was natural for him to write about all this enthusiastically. (He did everything enthusiastically.) He certainly loved the blog, and the forum it provided for him and others to join the broader conversation, which he pursued just as energetically off-line, in the social world, as he did in writing here. And he figured if he loved it, others would, or might. If, in later years, the commentary grew sharper and less patient, and a larger number of commenters were inclined to be harsher toward any law professor with the temerity to write about his or her professional life and its challenges and rewards, I don't think that slowed him down much or chastened him. Some commenters he would befriend and engage, others he would fight with, and still others he would simply shut down--sometimes quite rightly, sometimes too precipitously in my view. But none of this would slow him down much. It certainly would not stop him from sharing whatever he was enthusiastic about, whether it was an issue in criminal law or theory or a quotidian experience in the life of a law professor.
As I have suggested, others of us are perhaps more chastened or enervated by the changing environment online--sometimes in healthy ways that taught us something about respect for the audience, and sometimes in a less healthy way, a simple desire to avoid the tsuris. I don't think those issues much preoccupied Dan, although they do me; and if thinking about those issues leads me back to Dan, it's because thinking of anything having to do with this blog leads me back to him. We don't talk about his absence every day here. That is something of a deliberate choice, and the choice itself was a tribute to him. We hoped, and still hope, to memorialize him by trying to carry on with the blog with something like the energy he brought it. That we still do so, or try to, is something we owe largely to our guest bloggers, who carry on with great energy, and to our co-blogger Howard Wasserman, who more than anyone else has kept the blog going. In doing so, we have found that a "Dan," as a unit of energy in blog administration and in life, is worth about ten regular people. Carrying on, and trying to do so enthusiastically, is something we do to remember and emulate Dan, but it ain't easy.
It feels good, in some ways, to remember him in that way--to try to make sure that something of the huge spark he brought to life is still burning. But it's painful too. I've been rather ill this year and generally beyond tired. And I find that it's in some of the best and worst moments--those frequent moments in which everything is just too exhausting, and those rarer moments in which everything is going well, or something exciting or wonderful or hilarious happens--that I am most likely to think of Dan, to see his face, and to wish he was around to share the good and to lend me a little of his energy through the bad. That he isn't here to do so, and especially to share the good moments, his or ours (and if he was incredibly ambitious for himself, he was just as ambitious for his friends), and cheer us on, is a crime--a literal crime, certainly, and none of us has forgotten that. But in so many ways. I miss him. And, doubts or exhaustion notwithstanding, I'm incredibly grateful that he turned some of that incandescent Markelian energy my way, and invited me to try to share something of both my professional interests and, well, my life here on Prawfs. Thanks, buddy.
More to come. Years ago, a co-blogger recently reminded me, I offered a joking picture of what blog life might look like as we moved naturally into later stages of the professional journey. Some six years later, I'd like to follow up and consider what that part of it has actually been like. In the meantime, I wish a happy tenth anniversary to everyone, and especially to my absent friend, who made it all possible.
Sunday, March 08, 2015
What is the Real Takeaway of this Fine Op-Ed on Free Speech and Selma?
My colleague Ron Krotoszynski has a fine op-ed today on the First Amendment and the Selma-to-Montgomery march. I have put some key excerpts after the jump. The basic message is that modern free speech doctrine would render such a march unlikely, because in the decades since then the Court has developed a proliferating public-forum doctrine that enables courts and governments to do less to protect and "advance[ ] the First Amendment's core values." (The op-ed uses "1st," not "First," but I consider that a dreadful editing choice on the part of the newspaper.)
Judging by, e.g., Facebook reactions, I assume the takeaway for most people reading this op-ed will be something fairly conventional, along the lines of "free speech is good," "public forum doctrine is bad," and "the courts have been less protective of free speech--real free speech--since the Warren Court era." I assume somewhere in the mental picture painted, many will think of Ferguson, which Ron discusses very powerfully in the full op-ed, but Citizens United too.
I'm not sure that's the right or fair takeaway. I like Ron's op-ed quite a lot, but I think the right message to take from it, and what he reports in it, is more technical and less sentimental than that. I would be more inclined to take something like the following messages from the op-ed:
1) Legal doctrine itself is problematic--necessary, perhaps, but problematic. Courts, being courts--that is, being an institution that exists to make and then rationalize and coordinate legal decisions in individual disputes--will insist on casting their rationales for decisions in judicially manageable form. Some judges, for various reasons, both good and bad, will insist on coming up with doctrinal rules and tests right away, before all the facts in a particular area of human conduct are in; that doctrine may or may not last, and may or may not cause major problems down the line. Others will do it only after some time has passed and a number of decisions are under the judges' belt. Inevitably, though, over time, a series of more or less mechanical rules, regimes, factors, and standards will be built up. In many respects, this is a good thing. But it will ultimately be harder for judges to make sustainable unmediated decisions in individual cases, or less likely that all but a few mavericks will do so. For the most part, that's just not who and what modern judges in such a regime are.
2) Thus, if you are going to rely on a judicially interpreted First Amendment to do most of the work in setting speech rules and governing public discourse, prepare to be disappointed or underwhelmed. The age of the heroic judge will pass, and the bureaucratic First Amendment will remain in its stead. Perhaps that is a good thing, on the whole! Perhaps we think of the "age of the heroic judge" because those judges stand out in history, and because Americans are incurably sentimental, ahistorical hero-worshippers. A better picture of that era, with its few heroic judges and its many average judges giving little or no First Amendment protection at all, would conclude that free speech is better protected on the whole by bureaucratic judges, and a bureaucratic First Amendment, than by a few sweeping and imprecise speech-protective decisions issued by a few eloquent judges. The bureaucratic First Amendment at least causes more judges to issue more speech-protective decisions more often, although those decisions will often be rhetorically underwhelming and mostly mechanical.
3) This is the regime we have had since the Warren Court. Despite the nostalgia we may feel for judges like Johnson (or Fortas, in Ron's op-ed--and Fortas is certainly a model of the judge who does much and speaks powerfully, but does little that can be used readily by other judges), this model has resulted in a net gain of free speech protection. More speech is protected more often and more routinely and predictably than in the earlier model--understandably, since there is now more mechanical doctrine, each case is not so novel, and the bureaucratic model does not rely as heavily on the heroism or politics of individual judges.
But it has achieved this net gain by making free speech law broader, more applicable to more instances of speech and expressive conduct, and more egalitarian, and that has costs of its own. It applies to everyone and everything! (Corporations included.) Naturally, given its breadth--given the managerial role it gives judges across a huge swath of speech and conduct, and the need to coordinate this role in a judicially manageable fashion--it has given rise to more doctrines like government speech doctrine or public forum doctrine. These doctrines often give government (and the courts) an escape hatch, in order to make the whole enterprise more manageable for both judges and government officials. We have thus achieved manageability at a cost. Modern free speech doctrine achieves breadth and generality of protection. But it is sometimes less protective on occasions involving what we used to think of as "core speech activities." We have gotten more speech protection in more places, but less protection when and where it "really counts." After all, deciding that something "really counts" is just not a manageable, mechanical, predictable task, and certainly not one for the average judge carrying out his or her function in a coordinated system of constitutional adjudication.
Thus, we have a modern free speech doctrine that is, perhaps, better for average cases and average judges, but not especially responsive to extraordinary cases or liberating for extraordinary judges. This is not a surprising consequence of assigning the whole machinery of free speech to the judicial institution. Whether it is ultimately a good thing or not is a genuine question, and the answer to that question is a difficult one and cannot simply be arrived at via moral or emotional sentiment.
I note briefly in conclusion that much of this story is almost certainly applicable to other areas of First Amendment doctrine, such as the doctrine of the Religion Clauses, which is increasingly egalitarian and increasingly uninterested in or unable to deal with extraordinary cases or ideas. It is probably applicable to other areas of constitutional law as well.
Here are some of the key quotes from Ron's op-ed:
To mark the 50th anniversary of the Selma marches of 1965, we will replay the inspirational words of the Rev. Martin Luther King Jr., recount the courage of the marchers in the face of police brutality and recall the shock to the conscience that led to the passage of the Voting Rights Act. But we also should consider carefully an important question: Could a march like Selma happen today? . . .
Today, it would be impossible to obtain a federal court order permitting a five-day protest march on a 52-mile stretch of a major U.S. highway. Under contemporary legal doctrine, the Selma protests would have ended March 8, 1965. . . .
Starting in the 1970s, however, the federal courts began rolling back this idea [that, as far as I can tell, as long as use of a space for political speech and activity is not incompatible with the intended use of the space, it must be permitted]. A series of rulings erected what is known as the public forum doctrine, which lets a city, state or the federal government decide whether public property can be used for 1st Amendment activities. It also means that if courts do not designate a place a “traditional public forum,” government may forbid its use as a site of protest altogether. . . .
Even in traditional public forums, government may strictly regulate the time, place and manner of speech activity. The National Park Service, for example, has created “free speech areas” and limited protests to them. Predictably, the federal courts have sustained this policy.
Likewise, local, state and federal governments have banned dissent near major political events, such as the presidential nominating conventions. . . . .
To be sure, governments permit large organized marches when they want to. But the more pertinent question is this: Must a government allow large-scale protests when it would prefer not to? . . . .
Judge Johnson's opinion on the Selma march, in Williams vs. Wallace, advances the 1st Amendment's core values more effectively than today's anemic public forum doctrine. As he saw it, government has a constitutional obligation, grounded in the 1st Amendment, to make public property available to protesters. The burden of justifying any limits on protest speech should always rest squarely on the government. What's more, the federal courts should require government to tolerate speech activity unless it is fundamentally incompatible with the property's everyday use. Finally, speech activity that seeks to petition the government for a redress of grievances should enjoy the strongest claim to mandatory access to public property.
As we remember the epic marches in Selma and the legal reform they accomplished, we should also acknowledge how the courts have since hobbled our right to stage a protest of such magnitude. To truly celebrate the legal legacy of this civil rights milestone, we should embrace Selma's main lesson: Taking to the streets and other public spaces in protest is central to our democracy.
Friday, March 06, 2015
A Strikeout for ProPublica
I am a fan of the web site/operation ProPublica. It is a source of new investigative journalism in an age in which there is too little of it, and fewer resources for it, than I would like or than society needs. Certainly it has a political tilt, but I'm fine with that; it does good work on important issues.
But its piece this week on the Federalist Society is not its finest hour. Far from an investigative piece, it is just an interview with the author of a new book on the FedSoc. I look forward to reading the book, but the piece itself is not much of a contribution. Moreover, the framing of the interview is a little silly and a little overheated. And this line from the interviewer--"The Federalist Society doesn’t even make public its membership rosters"--is worse than silly; with its vaguely ominous tones, it ought to be an embarrassment to the good work done elsewhere by PP.
I will add that what I have seen virtually none of is "investigative" journalistic work on the newer, liberal American Constitution Society. Like the Federalist Society, it is not "secret" and not especially "secretive," although I assume it is not wholly transparent either. I assume plenty of the reporting could be done via publicly available sources, and of course I cannot say what more digging beneath and beyond those sources might reveal. Nor am I making any judgments about the relative power or influence of the ACS compared to the Federalist Society. But since the ACS's apparent goals at least appear to be roughly the same as the Federalist Society's apparent goals--to grow, replicate, have influence, and create networks of power--it certainly merits more serious and skeptical journalistic treatment than it has received so far, which seems to be none at all.
Wednesday, March 04, 2015
Book Reviews! Hallelujah!
Thanks to Orin, I see that a new online book review, The New Rambler, has been launched by editors Eric Posner, Adrian Vermeule, and Blakey Vermeule. It describes itself as reviewing "books about ideas, including literary fiction." In addition to Posner and Adrian Vermeule, Martha Nussbaum is among the inaugural reviewers. Commence bookmarking. And, as always, I will add that given the huge number of worthy books out there, the decreasing likelihood that good academic or trade-press books will be reviewed for large audiences in places like the New York Times Book Review, and increasing questions about the use and value of blogs, it would be great if all of us did more noting and reviewing of books. Law reviews, certainly, ought to devote more print space to book reviews in my view, and definitely ought to dedicate more online space to that purpose, and some have begun to do so. Welcome, New Rambler.
Audio Links: Alabama Law Review Symposium on the Voting Rights Act
This past Friday, the Alabama Law Review held its annual symposium. This year, the symposium marked the fiftieth anniversary of the signing of the Voting Rights Act. The speakers discussed its past, especially the civil rights activism--not least the famous Selma-to-Montgomery march, which will be commemorated this weekend across the country and in Selma itself--that helped bring about its passage; the current state of voting rights law, with panelists discussing, among other things, both the Shelby County decision and the pending Alabama Legislative Black Caucus case; and the uncertain future of voting rights. It was an extraordinary day. The topic itself was suggested by the students themselves, not the dean or faculty; that itself was important, showing both the students' willingness to acknowledge and confront our state's troubled (and, with respect to the marchers themselves, heroic) history and their commitment to voting rights now and in the future.
The speakers, including many of the nation's foremost experts on the subject, were terrific. Audio recordings of almost all of the talks are available on the Law School web site. I regret that the keynote address, by Judge Myron Thompson of the United States District Court for the Middle District of Alabama, is not available. Judge Thompson's talk was one of the most moving and eloquent addresses I have ever had the privilege of witnessing, and the rest of the audience clearly felt the same. I will not be surprised if it ends up altering the career choices of a number of the law students who heard it. I'm grateful to the Law Review and its editors, as well as the Law School's staff, for organizing the event, and to the wonderful panelists. Here's a rundown, with links:
Mark Brandon, Dean and Thomas E. McMillan Professor of Law Paul Horwitz, Gordon Rosen Professor of Law Johnny Wilhelm, Alabama Law Review
Jack Bass, Author and Historian
Professor Kareem Crayton, University of North Carolina School of Law
Professor Richard Hasen, University of California – Irvine School of Law
Professor Franita Tolson, The Florida State University College of Law
Session V – Lunch and Keynote Speaker
Judge Myron Thompson, United States District Court for the Middle District of Alabama
Professor Pamela Karlan, Stanford Law School
Professor Samuel Issacharoff, New York University School of Law
Professor Guy-Uriel Charles, Duke University College of Law
Tuesday, March 03, 2015
Some Questions About Randy Barnett's Latest Ref-Working Post
With another big ACA case before the Court, Randy Barnett has a new post returning to the subject of a number of posts, by him and others at the VC, during the NFIB litigation. He charges that "the left" is newly engaged upon a "political lobbying campaign" aimed specifically at Chief Justice Roberts, consisting of a mix of flattery and threats, to secure what it thinks is the right result in King v. Burwell. I have some problems with, and questions about, Randy's post, but I want to offer a couple of caveats up front.
In broad terms, there are aspects of his post that I either agree with or find plausible. I agree that the mandate case was a trendsetter in recent Supreme Court advocacy. Without more knowledge--the behavior of the press and professoriate of the period between the 1930s and the 1960s, not to mention the Justices, does not seem entirely innocent of at least similar activity--I wouldn't call it unprecedented. But it does seem to have been influential in our own time. The mixture of academic work, social and traditional media commentary, amicus briefing, and contact with journalists, generally aimed at advocating for particular results in the case, was striking. The striking element was not the advocacy as such. It was the mixture of different platforms for making the same argument, and the sense that although some of those actors are assumed by many to serve different goals and follow different professional standards depending on the role and the platform (although those standards are much-contested), what we actually got was people like law professors writing in both scholarly and non-scholarly platforms, for uniformly non-academic reasons and in a way that disregarded those goals and standards. It was the sense, in short, that some professional actors, rather than acting as academics (or journalists), were engaged in a multi-platform political campaign.
It's not clear that this approach worked. But the possibility that it did has made it more likely that the behavior will recur. That's especially true when we combine its potential effectiveness with a number of other factors: the (perceived) high stakes involved; the number of people with at least temporarily strong views on the issues and cases; the lack of clear standards of ethical conduct for both legal academics and a widening swath of news and opinion media; the potential personal gains involved (in reputation, influence, professional advancement, and ego-boosting effects of feeling like a player); and the belief that the other side is engaging in this conduct, leading to fears of being outgunned. I think some of this same cross-platform advocacy happened in Hobby Lobby too, and is happening or will happen again in King v. Burwell.
I personally find this sort of behavior--the mixture of fierce advocacy across different platforms, including academic and journalistic work that ought to be motivated by different goals and to follow distinct professional and ethical standards--distasteful, particularly where legal academics are involved. My reasons vary, but not least among them is that I have the luxury of prizing academic virtues and standards more than I do the results of particular cases. (Of course, all legal academics enjoy the same luxury.) I'm not sure whether Randy thinks any of the same conduct occurred on the right; I also don't know whether he thinks anything other than "working the ref" is ethically problematic. I know that my answer to both questions would be "yes": it did happen on both sides, and that it (arguably, assertedly) involved "working the ref" was not its only ethical shortcoming.
That said, Randy's post raises a number of questions. (After the jump. I apologize for the length, but I didn't have enough time to write a shorter post.)
1) What does he mean by "campaign," or "its?" (Or, for that matter, "the left?") Is he arguing specifically that there was a deliberate, coordinated strategy of conduct by "the left?" If so, among how many people? Is it likely that such conduct would occur only as a result of a continued, coordinated strategy? Is it even necessary? I would think not. As long as a few key actors behave in a particular way or make particular arguments, others will likely follow along. I don't know how many people crowd into Grover Norquist's Wednesday coordinated-campaign-planning meetings; nor do I know how many people receive their party's coordinated talking points of the day. But most people adopt the narrative of the day pretty quickly and more or less reflexively. This is certainly true, although not uniquely true, for both legal academics and journalists. We are no less susceptible to suggestion and no more capable of independent thought than anyone else.
2) If Randy does indeed mean to suggest something like a coordinated, deliberate strategy of attempting to influence the Chief Justice, what is his evidence? As far as I can tell, it involves two data points and one assumption. The factual evidence is this: 1) "[W]e have reason to believe that the Chief Justice Roberts did change his vote after the progressive onslaught" in NFIB, suggesting that "the left" has absorbed this lesson and is acting accordingly once again. But the "reason to believe" that he offers is weak. The apparent leak he relies on alleges that Roberts switched his vote in that case. But the leakers present no evidence that Roberts changed his mind because of media pressure to do so. The leakers appear to suggest that he did. But they offer no evidence to support this claim. And, of course, there are good reasons to doubt their surmise that he was voting under the influence. For one thing, leakers generally have an agenda. For another, their surmises could just be wrong. Assuming arguendo that the sources are smart people, smart people are still capable of being mistaken, especially on matters with a high emotional and political valence. Indeed, I have met plenty of smart lawyers who are both overconfident about their own judgment and too ignorant of the psychological drivers of other people's actions (not to mention their own); these people may thus be more susceptible than others to erroneous judgments about another person's motivations. 2) The second data point is simply the actions themselves, in both the NFIB and this case.
That's where the assumption enters in. It's difficult to tell, and I acknowledge room for disagreement. But as far as I can tell, Randy seems to be making an implicit logical argument: The conduct he describes must be aimed at directly influencing Chief Justice Roberts in an improper manner. Why else would people behave this way and write what they have written? I see lawyers and legal academics drawing conclusions of this sort all the time online and in print. It seems to me that this kind of argument is pretty common for lawyers (and online commentators, many of whom, on the sites I frequent, allege that they are lawyers). It's a problematic kind of argument: it displays an unjustified belief that one can reason one's way to a conclusion, especially about other people's motives, based on some kind of logical reasoning or process of elimination. I may be wrong about whether Randy is making this sort of logical argument, and this sentence is not aimed at him especially. But I do think it's common, and betrays, among other things, an overconfidence about the power of logical reasoning, especially from limited factual premises, and an inadequate appreciation for the power of human psychology and the variety and complexity of motives for beliefs and actions.
In any event, the problem with such a conclusion in this case is that there are many other reasons why people might write these kinds of things, other than a simple primary intention to directly influence the Chief Justice or any other member of the Court. People write heatedly and politically because they are heated and political. They write about other people's motives because they care about them (too much, I would say) and are confident they can identify them. They accuse judges and others of acting in bad faith and urge them to act in good faith--by agreeing with them--because they believe, sometimes to a ridiculous extent, that their own views are so obviously right and their opponents' views so obviously wrong that disagreement must signal bad faith. While they are capable of acknowledging the complexity that might go into their own views and actions or those of their friends and forgiving their friends or themselves for acting inconsistently or with mixed motives, their empathy and imagination runs out where their political adversaries are concerned. They engage in moral sermonizing about the Chief, the Court, and everything else because they are moralists in an extraordinarily moralistic society, and one in which, to paraphrase Tocqueville, every morally charged political issue eventually becomes a morally charged legal issue and is subjected to the endless American pastime of moralizing; and also because the sermon is a classic American literary genre and one that most of us--even, alas, legal academics, who have no special moral qualifications and ought to realize it by now--engage in fairly frequently. They write passionately about the Court as an institution, its reputation and fitness and legacy and so on, because many politically engaged lawyers and journalists care deeply and sincerely about these things, albeit temporarily and inconsistently.
Not least, the propensity of many journalists, lawyers, and legal academics to write in this fashion--telling the Court what it should do, and the rest of us what we should think of the Court if it decides a a hot-button case in one direction or the other--has to do with the fact that it's their job, sometimes their vocation, and this is the activity expected of them. Lawyers and legal academics write about legal and/or political issues because they care about those issues and get paid to care about them, because many sectors of the legal academy expect and/or reward (in various ways, financial compensation being only one) this sort of writing rather than clinical and dispassionate work, and because caring and writing about legal issues is both a professional imperative of sorts and a conditioned reflex. Commentators write heatedly and in a partisan fashion about politics and the Court because they want to, and/or convince themselves they want to; because writing a broadside is easier, temporarily more satisfying, and more likely to draw attention than writing a dry technical piece; because online writing is partisan, competitive, and driven by page views; and so on. To Johnson's dictum that no man but a blockhead ever wrote except for money, we could add other compensations: recognition, ego, invitations to speak in Las Vegas or Hawaii or Peoria, the satisfaction of partisan urges, the desire to please one's friends or rile one's enemies.
In sum, there are plenty of reasons to write partisan screeds for or against the Court or results in particular cases or the reputation of particular judges. Most of them are consistent with coordinated partisan conspiracies. But none of them depend on the existence of such concerted action. At least in this polarized partisan environment, people would write exactly the same words whether such a conspiracy existed or not. The supposition that the writing we saw in NFIB or Hobby Lobby or that we see today would only exist if there were the kind of "campaign" that Randy describes is far too thin; the evidence he offers is weak. One might respond that even if this is so, that does not explain why there has been such a combination between what is said in media outlets, what is said in academic work, and what is said in briefing. Again, I find these overlaps distasteful and worrisome. But the response is not true. Many legal academics are political and cause-driven, either all the time or in particular cases; many writers and politically engaged people of all stripes no longer draw sharp distinctions between different roles, different media platforms, and different professional or ethical standards; many communities and groups, online and off, encourage people with these views to mix and mingle.
I would add that in my view, even apart from professional contestation over how politically engaged legal academics should be, conventional standards of professional responsibility for legal academic work, intramural or extramural, are weak, and the rewards for massaging or ignoring those standards can outweigh the risks. Plus, everyone is convinced that the other side is doing it and that they had better respond in kind. I wish it were otherwise. But in this world, there are plenty of reasons for a law professor to mix one's academic work, one's writing for the general public, and one's work on or signing of amicus briefs. No "campaign" is necessary. I don't know whether one exists just the same. If it does, I haven't been invited to sign on to it, although given my small talents and large sentences that's no great surprise. But I don't think Randy's evidence or arguments on this point are especially convincing.
3) It would also help if Randy could describe which aspects of such a campaign are wrong, unethical, or outrageous. Perhaps it is only the purportedly concerted nature of the action that concerns him, or the attempt to "threaten" the Chief Justice. As I said, I don't think the evidence for a concerted campaign is very strong. And the second possibility raises a host of questions. Is it really always wrong to question the Chief's reputation or ponder his legacy? Why? If not, when is it wrong? If, on the other hand, it's not just one or both of these things that concern him, what does? What would he rule out of bounds?
4) Does Randy think all the examples he cites are equally strong? Some of them seem rather weak. For example, he writes, "To assist the Chief Justice in burnishing his legacy, The Hill helpfully provides a poll" of public opinion on the King case. Public opinion polls are pretty standard stuff, easy to write and engaged in more or less reflexively. It's a big stretch to see their very existence as evidence of an intention on the part of the news organ commissioning, conducting, or reporting on them to sway the Chief Justice. And Ian Millhiser? For one thing, does anyone actually pay attention to Ian Millhiser? Even if they do, is there much evidence that Millhiser writing a partisan piece about the Court is part of a campaign (as Randy notes, Millhiser's piece is "characteristically fervid," which is to say that he does this kind of thing all the time, "campaign" or no), or that he envisions Chief Justice Roberts as one of his readers? Millhiser has a book coming out; isn't he pretty clearly just involved in selling it?
5) My final point concerns what Randy himself is engaged in doing. I'm not sure it contradicts any of Randy's assertions. Moreover, I find myself generally uninterested in charges of hypocrisy, which are common in American legal and political debate but often misused. Even if hypocrisy or inconsistency does not disprove a persons's arguments or factual assertions, however, it does tend to undermine the effectiveness of that person's arguments and rhetoric--especially the kind of moralistic rhetoric that is so common in American legal and political debate--and to raise questions of its own.
I consider myself to have some expertise on this question, and it stems primarily from being a parent. (At least where passive-aggressive conduct is concerned, being Canadian also supplies some expertise.) Like most children, my two kids routinely compete for seemingly scarce resources, including their place in their parents' affections, and regularly rat each other out for misbehavior. (In fairness, they're only six and nine; I hope to teach them one day to observe a form of sibling omertà.) Quite frequently, their arguments along these lines contain a certain measure of passive aggression and hypocrisy: my daughter revealing a confidence from her brother to tell us that he has divulged a secret, for instance, or my son running downstairs to report that his sister was running in the house. All of this, and other forms of argument as well, usually is packaged in a kind of passive, indirect way. The implication is that the child in front of me, even as he or she breaks one rule or another, is really just reporting what the other child did and thus should not be treated as an act of rule-breaking.
Similarly, the obvious question arises with respect to Randy's post: What is going on here? Randy argues that "the left" is attempting to influence the Chief by a mixture of flattery and threats. To the extent that the Chief sees Randy's post, isn't that post likely to operate in exactly the same way--by stiffening his spine, or moving him to resist this "campaign?" He writes that "the left" "once again risk tainting a ruling in their favor as being based on the very political considerations they themselves urge upon the Chief Justice." Doesn't such a statement risk being read as suggesting that a ruling agreeing with "the left's" preferred interpretation in King would be tainted, or seen as tainted by the public--and that, conversely, an opinion agreeing with Barnett's preferred interpretation would be seen as correct and independent, if not downright courageous? He writes that "the left's" current "campaign" on King is being conducted "with varying degrees of subtlety." Is it not apparent that his own post can be read in precisely the same way--as an indirect, passive-aggressive way of flattering and threatening the Chief by reporting on the attempts of "the left" to flatter or threaten the Chief? The answer is "of course," of course.
None of that, again, means that Barnett is wrong in his charges against "the left," although, as I have said, I think his evidence is questionable. It does not mean that Barnett is intentionally engaging in a campaign of his own; I disclaim any knowledge of his motives. Nor does it mean that the kinds of writing he is talking about, and more particularly the kind of mixed multi-platform advocacy that I think is becoming increasingly popular, is a good thing. I think it's a bad thing, regardless of whether it is concerted or not or aimed at the Chief Justice or not. It worries and disheartens me especially when engaged in by legal academics. I support institutional pluralism. As such, I have no great problem in the abstract with the notion that some public law-oriented legal academics might have a different vision of the legal academic project, one that sees it as being aimed at achieving immediate social, political, and legal change in the world and views academic writing, amicus briefing, and public commentary all as potential tools toward that end. But I think criticism is also a natural aspect of institutional pluralism--and I have a critical view of this conception of legal academic work and professional standards.
I find it hard to imagine that Barnett is unaware that posts like this could have the same effect. I am not suggesting with confidence, but also cannot rule out the possibility, that he knows this, or even that he hopes to influence the Chief Justice. And I am not inclined to view this kind of activity any more favorably if it is engaged in "merely" as a corrective or balancing out of work by "the left."
Tuesday, January 20, 2015
Decision in Holt v. Hobbs
The result in this RLUIPA case was unsurprising: The petitioner won unanimously. Justice Alito wrote (again) for the Court, in an opinion holding that "The Department [of Prisons]’s grooming policy violates RLUIPA insofar as it prevents petitioner from growing a 1⁄2-inch beard in accordance with his religious beliefs." Justices Ginsburg and Sotomayor filed short concurrences, solo in Sotomayor's case. The opinions are here. Mazel tov to Professor Doug Laycock, who argued on behalf of petitioner Gregory Holt in the Supreme Court.
Saturday, January 17, 2015
An Interesting Quote from the Supreme Court of Canada on Religious Institutionalism and Pluralism
The Supreme Court of Canada yesterday issued its opinion in Mounted Police Association of Ontario v. Canada. The subject is freedom of association in the context of collective bargaining. But there is a paragraph in the judgment that speaks to the kinds of issues that I, and a number of my colleagues in the law and religion field, have been interested in over the last few years and that has been relevant in cases like Hosanna-Tabor. In particular, it's relevant to the interest of many people in the field in questions of religious institutionalism; it's also relevant to the interest of some of us, like me and like John Inazu (whose book is cited in the opinion!), Abner Greene, Perry Dane, and others, in the current state of religious and other forms of pluralism.
As a matter of interest, I note that sentence of the quote beginning "The Court has also found..." is consistent with arguments, by people like Micah Schwartzman and Rich Schragger, that any kind of institutional or corporate religious rights are at bottom derived from individual rights, not from some kind of inherent valuing of the "entity" itself. On the other hand, that sentence that follows that one is pretty rich--for a judicial opinion, at least--in finding a more structural appreciation for and protection of institutional life. It asserts, quoting an earlier opinion, that "the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection of freedom of religion." [Internal quotations and citation omitted.]
Here it is:
 First, the Charter does not exclude collective rights. While it generally speaks of individuals as rights holders, its s. 2 guarantees extend to groups. The right of peaceful assembly is, by definition, a group activity incapable of individual performance. Freedom of expression protects both listeners and speakers: R. v. National Post, 2010 SCC 16,  1 S.C.R. 477, at para. 28. The right to vote is meaningless in the absence of a social context in which voting can advance self-government: Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68,  3 S.C.R. 519, at para. 31. The Court has also found that freedom of religion is not merely a right to hold religious opinions but also an individual right to establish communities of faith (see Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37,  2 S.C.R. 567). And while this Court has not dealt with the issue, there is support for the view that “the autonomous existence of religious communities is indispensable for pluralism in a democratic society and is thus an issue at the very heart of the protection” of freedom of religion (Hutterian Brethren, at para. 131,per Abella J., dissenting, citing Metropolitan Church of Bessarabia v. Moldova, No. 45701/99, ECHR 2001-XII (First Section), at para. 118). See also Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696 (1976).
Thursday, January 15, 2015
A Further Typology of Draft Readers
I enjoyed Eugene Mazo's post below on different kinds of readers of colleagues' manuscript drafts. In the comments, I added one more category of reader/commenter: "The Bikini, whose advice is always: 'This is really two pieces.'"
That was a joke, but not a joke. Notwithstanding that comment's light tone, there certainly are people who give the "it's really two papers" advice all the time. But just because some readers tend to give the same particular advice or ask the same questions repeatedly and thus fairly predictably, that doesn't mean the advice is not valuable. Provided you give your draft to a range of readers with a range of hobby-horses, it's useful to hear even from readers with marked tendencies to ask the same questions of each paper, because as predictable as that reader's conclusions might be as a general rule, sometimes (ie., almost always) authors don't see their own piece clearly. Moreover, you might be the exception that proves the rule, and that's good to know. When someone who sees almost every piece as a bikini-in-waiting agrees that your paper is a genuine one-piece outfit, you know you're safe on that score.
Still, anyone who delights in the amusement of seeing types and tendencies in the characters of our colleagues (and ourselves) can enjoy this kind of semi-satirical academic sociology in the paper-reading category too. So here are a few more types, and I welcome others (as long as they're on point) in the comments. Some such readers may include:
1) The Sullen Adolescent, who asks of most pieces, "So what?"
2) The Fixer, or perhaps, in tribute, The Markel, who demands some "normative" or prescriptive payoff at the end of each piece; who asks every time whether the piece is "merely" descriptive or whether it has some fix or solution--the inevitable Part IV of so many legal academic papers. Others can disagree with me altogether or modify the description, but it seems to me that this was our friend Dan's favorite question, and a source of endless disagreement and debate with his friends, who if they're like me would gladly have that debate a few more dozen times.
3) The Publisher's Agent. Do such readers take money under the table from the university presses? Knowing what I do about the budgets of those presses, I doubt it. But the advice from this reader is invariably, "This is really a book."
4) The Librarian, whose reaction to each piece is to begin, "Have you read...?" and provide a long reading list of (possibly) relevant cites and sources. (I am often a Librarian as a manuscript reader.)
5) The Careerist, whose advice for papers is aimed at less at encouraging the writer to follow his or her own scholarly muse as such, and more at helping the writer to play the academic game with cunning and skill. I am fairly convinced that I have seen enough smartly shaped and tailored papers from well-trained law school fellows and VAPS to spot the behind-the-scenes advice of a Careerist. One could say much more about this category of advice, and advisor. But I am feeling unusually prudent this morning.
6) The Gamer. Similar to the Careerist but with advice aimed at a slightly different, if overlapping, goal. The Gamer's advice is aimed not at advancing the career of the paper's author, but at passing along all the tricks and tools that may advance a paper's placement chances. (As I say, the goals overlap.)
7) The Careerist-by-Proxy. A cross between the Careerist and the Librarian. Like the Careerist, the Careerist-by-Proxy advises authors with the hope of career advancement; but the career this reader seeks to advance is his or her own. Like the Librarian, this advisor offers a well-stocked shelf of sources for the author to cite; unlike the Librarian, the stock of the Careerist-by-Proxy consists mainly or entirely of his or her own work. The advisor's own cite count and academic stock rises as a result. The Careerist-by-Proxy may be defined as someone who is adept at buttering his own bread with other people's loaves. Is there a little Careerist-by-Proxy in most of us when we act as readers? I suspect there is.
Provided they're on point, dealing specifically with types of draft readers, feel free to add your own.
Monday, January 12, 2015
"Religious Liberty" is Now a Right-Wing "Dog Whistle"
I'm not a big fan of Frank Bruni, admittedly. But his piece yesterday has a number of interesting aspects that are worth highlighting. It's difficult to describe his argument with precision. To say the column ranges all over the map is unjust to cartographers. But its general subject is the real and perceived conflicts between religious liberty and gay rights. There are small pieces of the column I agree with or for which I have some sympathy, and others I disagree with. Here, I want to focus on a few extraordinary and telling moments.
The first, per the title of this post, is this statement:
“[R]eligious liberty” sounds disturbingly like a dog whistle to the crowd that wants specified, codified exemption from anti-discrimination laws; it’s one of the phrases they lean on. If [Jeb] Bush didn’t know that, he should have. If he did, he just sided, for the moment, with religious extremists.
This is a remarkable statement, even if there is a kernel of truth to it. One might be delighted when presidential candidates say anything at all about about constitutional rights. But now it appears that when they invoke one of the nation's oldest, most important, most culturally defining liberties, it should be dismissed as a pernicious right-wing "dog whistle." This is a dispiriting conclusion. It does not bode well for the possibility of meaningful pluralism, or civil disagreement about the scope of our liberties. (It also stretches the term "dog whistle" so far that it ends up sapped of much moral power at all. On this definition, for instance, I take it we would all agree that President Obama's pronouncement that he would look for "empathetic" judges is a "left-wing dog whistle," no matter what he actually meant when he said it.)
Bruni's statement gets more interesting if one tries to unpack why, exactly, invoking "religious liberty" is a conservative "dog whistle." What he means, I think, is that where there is disagreement about the meaning of a constitutional right or value (ie., always), then someone's use of a definition of that term that Bruni disagrees with is not a difference of opinion on constitutional meaning; it's an illegitimate "dog whistle." This really is remarkable. Various versions of the notion that "religious liberty" is just that--a positive right of religious belief and practice, even in the face of legal rules to the contrary--have been prominent throughout American history. A strong version of that view was the law of the law of the land between 1963 and 1990, championed by such notorious conservatives as William Brennan. It might be wrong; even if it's right, it still might lose in the balance against countervailing rights and values. But it's hardly esoteric or unthinkable. Bruni's attempt to rule it out of bounds altogether is a sad commentary on our times.
Given that there is disagreement about the scope of religious liberty, it would help if Bruni proposed a definition of the term. He doesn't. To the extent that one can piece together his views, they are not unusual. But they are more interesting than one might expect from this unsophisticated writer.
In essence, Bruni offers a popular--perhaps even the prevailing--contemporary American view of religious liberty: it is simply a right against clear, intentional anti-religious discrimination. The egalitarian version of religious liberty is common enough these days. More or less sophisticated and capacious versions of this idea have been offered by different writers. And there's much to recommend it. It's especially attractive to legal formalists and strict doctrinalists; it's no surprise that one of the leading cases supporting it is Justice Scalia's opinion for the Court in Employment Division v. Smith. This understanding of religious liberty is hardly outlandish. But I find two or three things especially interesting about Bruni's apparent understanding of this version of religious liberty, and the implications of that view.
First, note Bruni's definition of the scope of religious liberty: it applies in, and only in, people's "pews, homes and hearts." Some version of this, too, is common enough, although it's not always so niggling. In fancy-law-speak terms, it's just a strict version of the "public-private distinction." I find it startling that Bruni relies so heavily on this distinction at all, let alone such a strict version of it. That distinction has been the subject of countless, often perceptive criticisms for at least the last sixty years. But to read Bruni--and not just Bruni--it's as if Critical Legal Studies, feminist legal theory, and other critiques of the public-private distinction simply never happened. Bruni's ingenuous statement arguably reveals him as a staunch follower of the Legal Process school, a mid-twentieth-century legal conventionalist apres la lettre. It's an oddly old-fashioned thing for him to be--and I think he's hardly alone in this.
Bruni's egalitarian definition of "religious liberty" is essentially parasitic on an anti-discrimination norm. His understanding of the Free Exercise Clause should therefore say something about his reading of the Equal Protection Clause. It's tough to reach firm conclusions here, unfortunately. Even though his column is all about "religious liberty," "equality," and "anti-discrimination," Bruni defines none of those terms. But it's entirely possible to ask reasonable questions. Does Bruni believe that a law can discriminate against religion even if it does not do so facially and explicitly? Does he believe that a law that has a disparate impact on religion can violate "religious liberty," even if the law is facially neutral? Leaving aside the Establishment Clause, does he think the Free Exercise Clause permits the state, for reasons of diversity or other such grounds, to make decisions favoring religious individuals or groups at the expense of otherwise similarly situated non-religious individuals or groups? Or, as I think is the case, does Bruni believe that "religious liberty" is only guarantees formal equality? What are his consequent views of the proper interpretation of the Equal Protection Clause with respect to individuals or groups other than the religious? There is no question, given his approach, that his view on one clause must relate to the other or even be identical to it. How does Bruni feel about Washington v. Davis, or Bakke or Grutter, or other such cases?
Again, Bruni covers a lot of ground here. Again, there are areas where I agree with him. (Although I do not think, as Bruni apparently does, that the law must penalize Mormon hairdressers who "turn away clients who saunter in with frappucinos," and that this is so blindingly obvious that everyone would agree about this. It's one thing to say that the religious views of those who operate businesses should not entitle them to refuse service based on someone else's race, gender, sexual orientation, and the like. It's another thing to say that business owners should never be able to turn away anyone on the grounds of strong and sincere personal objections of any sort. Or does Bruni think that it's only actions based on religious grounds that must be legally erased from the marketplace?)
What is interesting and revealing about his column, though, is not just what he says. It's also what he doesn't say, and doesn't appear to recognize. He appears to think his conclusions are both self-evident and clear. But they are all based on labels: "religious liberty," "anti-discrimination," "equality." These are not infinitely malleable terms. But they're sure as hell contested ones; at least in the case of "equality," they also rely on conclusions that lie well outside the confines of the word itself. One would hope that Bruni would at least attempt to define them. We might then not only be able to evaluate them, but to ask how consistent he is in his application of those seemingly self-evident principles in other areas, such as the Equal Protection Clause. Given his failure to offer any definitions at all, or seemingly to recognize that these terms need to be defined, it's--well, I'm not sure whether it's surprising or unsurprising--that Bruni can so confidently assert that the public invocation of "religious liberty," one of the most defining values in American life, law, and history, is a mere "dog whistle." How passionate American political debate is these days, and how impoverished.
Thursday, January 08, 2015
Applause for the Column Linda Greenhouse Didn't Quite Write
A current rule of the Internet is to ignore the headlines, since their goal is to get clicks and not to accurately describe the content of the piece. We might say the same thing about Linda Greenhouse's latest column, "It's All Right with Sam."
But it's not just a headline thing. Maybe it's just me, but the whole framing of this piece seems off. At bottom, the real subject of the column appears to be two or three instances in which she strongly disagrees with Justice Alito, to the point of calling his actions odd and inexplicable (except as plays for the affections of the right). If that's right, she could have gotten right to the point. But there's a whole lot of stuff up top about how Alito is viewed as a "rock star" by conservatives who care about the Supreme Court, about how he has been the subject of "several recent hagiographic articles in the right-wing press," and about how her goal is to examine "the increasingly distinctive role he is carving out for himself inside the institution." But I don't think her piece does that, and the stuff leading the column turns out, in this instance, to be fluff, quickly abandoned so she can go after those pricked-out inexplicable cases.
That's fine; it's just a column. If the mismatch between what Greenhouse says she's going to do and what she actually does in this piece struck me more than usual, enough to warrant comment here, it's because I'm disappointed at a missed opportunity. The folks I chatted with who saw Justice Alito at a dinner associated with last week's Federalist Society conference in DC did indeed speak of him in "rock star" terms, roughly of the sort I would associate with Us Magazine. He has received hagiographic profiles in the conservative press. ("One of the noblest men in American public life today?" Maximus Decimus Meridius, thou shouldst be living at this hour!) Although her opening paragraphs end up having little to do with the bulk of her column, they are certainly accurate.
It would have been interesting to read a piece by a well-informed, long-time observer of the Court, its justices, and the lawyers, clerks, scholars, and hangers-on who dwell around its precincts, about the American tendency to hero worship and how it plays out with the justices--or, if you insist, the "Justices." Maybe it's just the non-joiner in me, but this has always struck me as an unhealthy and rather immature tendency, a kind of failure to get over one's past clerkship raised to the levels of the entire legal culture. I assume Greenhouse would have had some interesting observations about this.
Not least, inasmuch as she is a liberal and has resident status in the organizations that feed these celebrity-oriented and elite-reproducing tendencies on the left side of the legal aisle, such as the American Constitution Society, I think Greenhouse might have had interesting things to say about echoing behavior of this sort on the right--again, "one of the noblest men in American public life today." As a result, she might also have shared some interesting reflections on this behavior among her own ideological allies. I'm not complaining about the column she wrote; I'm mourning for the column she didn't write.
Wednesday, December 31, 2014
AALS Bloggers' Get-Together and Markelfest
Happy impending new year to everyone. Most of us here, hosts and guests alike, have spent the latter half of the year in the shadow of the senseless death of our friend and colleague, Dan Markel. Most of us have shared our thoughts and feelings about this, but little things bring back his memory most every day and remind me again that he is gone. The feeling is not, for me, one of unmixed grief, or perhaps this is what grief actually feels like and I just didn't know, not having gone through it before: the fresh, recurring, often joyous and poignant nature of the memories; the sentiment at particular moments that I wish Dan was around to experience something; and the aftertaste of futility and loss each time when I remember that he is not. We here have tried to blog more in the past few months (mea culpa for my failures on this point, and thank you to permanent bloggers like Howard and our many guest bloggers for doing so much), and more energetically; not so much in tribute, but more out of a sense that the best way to honor some of the things we loved best about him--his boundless energy and his many friendships--is to try to emulate it. His blog was a great project and we remember him in doing our best to keep it going. We're grateful to our readers for sticking with us. I always want to note that Howard Wasserman and Ethan Leib have done an immense amount of work behind the scenes and deserve all our thanks.
By way of remembering both Dan's energy and his innumerable friendships, I'm happy to announce that Prawfsblawg, Concurring Opinions, and the Younger Comparativists Committee of the American Society of Comparative Law have organized a joint happy "hour" at this year's annual AALS conference, beginning Saturday, January 3rd at 8 p.m. All are welcome: bloggers, readers, neither-bloggers-nor-readers, friends of Dan, anyone (the last two are basically synonymous). In recognition of the fact that many of us are now friendly, energetic, middle-aged bloggers, the start of the affair is earlier than it sometimes has been, and the location is closer to home base: we'll gather at the Stone's Throw bar in the lobby of the swanky Marriott Wardman Park in DC. I'm sure the happy "hour" will inevitably become happy "hours," so if you're coming back from dinner and such, feel free to swing by later. Tell your friends. Drop by and have a drink and a chat for Dan.
Wednesday, December 17, 2014
An Interesting Op-Ed on Delaying Exams, and its Consequences
The National Law Journal has this op-ed from a law student, titled (although the author probably didn't write the title) "Delaying Exams Is Not a Request from 'Coddled Milennials.'" It concerns, as the author writes, students at various law schools who have "requested that their administrations allow extensions on final exams for students who have been confronting the aftermath of the recent failed grand jury indictments of the officers who killed the unarmed black men."
But that's the least interesting aspect of the op-ed for present purposes. What is interesting is that the author makes clear that the trauma is, for him at least, not the most relevant reason the students want a delay. To the contrary, many students in his position, by his description, are not only capable but extraordinarily capable of taking their law school exams right now:
Although over the last few weeks many law students have experienced moments of total despair, minutes of inconsolable tears and hours of utter confusion, many of these same students have also spent days in action—days of protesting, of organizing meetings, of drafting emails and letters, and of starting conversations long overdue. We have been synthesizing decades of police interactions, dissecting problems centuries old, and exposing the hypocrisy of silence. . . .
Our focus and critical thinking are at an all-time peak while the importance of our textbooks is at a low. It is not that law students are incapable of handling their exams. It is that we are unwilling to remove ourselves, even for a few days, from this national conversation. As future practitioners, professors, judges and policymakers, we have all been trained not only in the faithful application of the law but also in the critical examination of its effectiveness. And by our analysis, responsible members of the legal community can no longer defend our criminal justice system as exemplifying fair process when that system so frequently produces the same unjust result—life drained from an unarmed black body by a barrage of government-issued bullets.
We recognize that this is a moment for change. If not us, then who? For most of us, we know that if we get lower grades this semester, this cost will have been worth the importance and privilege of joining a national movement to fundamentally reform this country’s approach to law enforcement and criminal justice. But just because we are willing to pay this price does not mean we should have to. . . .
Our requests for exam extensions are requests for our faculties and administrations to recognize that this movement is our legal education—that when we march, when we advocate, when we demand accountability and action we are employing the analytical skills and legal knowledge that we have learned in our law school classrooms far more than we would be if we responded to a hypothetical exam prompt.
I have quoted the student at length because, rather than employ two common responses to these recent questions--unqualified acceptance of the students' claims or unqualified ridicule--I want to take the student and his argument seriously on their own terms. As such, I read the op-ed to say the following: However upset we may be, we are more than capable of doing the work the exams demand--more than capable of marshaling and analyzing facts and law and using and communicating analytical skills and legal knowledge. We can take the exams. But we don't want to; nor, all things considered, do we want to suffer grade penalties for taking them later. This is a unique time. It is a time for all good people to get involved in issues of police violence, and specifically racially disproportionate police violence. We are making a knowing choice to do this instead of working on our law school obligations, and the law schools should recognize the importance of these issues and assist us in doing so without what penalties given the circumstances. I hope that is a fair precis.
For what it's worth, I think the student is right that this is not simply a "coddled millenial" argument, notwithstanding the hundred or so comments on the National Law Journal website calling the student a coddled milennial, although in less friendly language. This student argues not that these students are done in by grief and sensitivity, but that they are engaged and skillful; they simply think they have more important things to do. In that, it makes me think not about the millenial generation in particular, but about other generations and other eras in which this kind of argument might have been made, at least in elite circles. In particular, it reminds me of Laura Kalman's great book Yale Law School and the Sixties, in which, as I wrote here in a post in 2006 (searchable, if you plug in Prawfsblawg and Kalman and sixties), a bunch of YLS students in the Hillary Clinton period staged a walkout to end the war in Cambodia, and then demanded that those students receive course credit without sitting for their final exams. It reminds me, too, of debates and goings-on at law schools in the era I think our current era most closely resembles: the early 90s.
To my mind, taking this op-ed seriously is more valuable than either mocking it or accepting its claims categorically. And it raises some interesting questions. Are the students right that this is a unique moment? Conversely, are there times when a "moment" would be judged insufficiently unique or pressing to justify a student's request for exam delays on the grounds of political activism and an emotional response to current events?
More important, perhaps: Why attend law school at all at such moments? Why not take a leave from school, or drop out altogether? Why not become a full-time activist instead of a part-time student? One hardly needs a law degree to work for social change. It is true that law school teaches valuable skills, or at least gives one credentials, that might help one engage in certain forms of socially conscious work in the long run. But I take the student's point to be that the students cannot wait; they must act now, notwithstanding their prior obligations as students, and the moment is sufficiently pressing that they should not be penalized for making that choice. If the moment is so pressing, why remain in law school? One could ask similar questions about the possibility that some of these students--not all, I'm sure, perhaps not even most of them--will go to work at standard-issue law firms after graduation, on the grounds that those credentials and experience will allow them to do more important work for the social good in the long run. Whether this is a good argument or not in normal times, doesn't it entail these students waiting to make significant contributions until after they've done a few years gathering standard credentials in clerkships and law firms--in other words, until well after the moment has passed? And if that's so, doesn't that weaken the argument that the students should have their exams delayed because the moment is so urgent?
I initially intended while writing this to acknowledge at this point that these may seem like somewhat unkind questions. On reflection, though, I think they're not. They're perfectly legitimate questions that arise if you take the student's arguments seriously instead of just mocking him as another "coddled milennial." If they're at all unkind, it's not because they're dismissive but because they take the student's logic perhaps more seriously than he would want. Once you accept the argument of the logic--protesting is more important than exams right now because of the urgency of the moment, and the issues raised by the news right now deserve some extra consideration over the mere routine of law school and its obligations--than the question "why not drop out?" seems perfectly reasonable. Conversely, it seems unreasonable to accept the logic of those arguments up to a point--"Yes, you should certainly get an extension from exams on the grounds of political urgency that you offer"--but not accept them too much: "Of course, that doesn't mean that, having gotten the extension, you shouldn't remain in law school, graduate from Harvard, and go on to a prestigious clerkship and a short career at a fancy big firm before doing the things that are really important. Those things can always wait, and you'll do more good in the long run. By all means, have your cake and eat it too." In the circumstances, if you accept his argument, I think the student has made a fine case for abandoning law school immediately and taking up full-time activism. And I sincerely appreciate his offering a different, non-milennial take on things.
Saturday, December 13, 2014
A Few More Cents on the Exam Question Question
My initial inclination concerning the UCLA Law School Ferguson-related exam question fuss was to think that the professor had not acted terribly or outrageously, especially since the question itself was one step removed from direct questions about the shooting or the grand jury process. That said, I ended up more ambivalent about this question than I expected I would be, for various reasons. Some of those reasons are given by Eugene, whose post title--"Exam questions about emotionally charged events"--puts things in the right context. A few observations:
1) The main goal of any exam drafter should be to give a clean question that offers a simple basis for evaluating a student's mastery of the subject matter of a course and grading those questions. Anything that distracts from that goal should be avoided. Sometimes the thing to avoid is the professor's own 'wit.' An exam question, for instance, should not feature parties named Chuck, Chick, and Chet, so that students have to waste time figuring out who's who. A clever question based on a TV show should not assume that students know anything about the show. A professor should certainly avoid using a question as a vehicle for his or her own politics, because students may worry about satisfying those politics.
"Emotionally charged events" may be a distraction too. Thus, questions of future lawyers' "toughness" aside, those questions should be avoided if there is a chance that a number of students will be distracted by them, let alone upset. Although I think we seem to have re-entered an era of concerns over political correctness, and one in which, as a commenter wrote on Howard's post, some students (and some professors) "are generally unable to separate their own political beliefs from principled legal analysis (or even civil, civic discussions)," the view I've offered here doesn't have much to do with that. It's simply a matter of best practices in exam drafting. I do not think the question was outrageous, as I said. But the concern could have been anticipated and avoided.
2) I think some of the arguments I have seen, along the lines that law school is all about training students to deal with controversial issues in a clinical fashion and that students who have emotional responses to such questions show a lack of fitness for future practice, are overstated. There are some valid points here. Eugene points out something important that most commenters have not: even where a lawyer is acting for the side he or she feels passionate about, not against it, that lawyer "will do [his or her] clients no favors by being so zealous in [his or her] opinions that [the lawyer] fail[s] to grasp the best arguments on the other side." Even a lawyer with the good fortune to be representing a person or cause that he or she feels passionate about must still also bring a clinical side to that work.
That said, lawyers are not always required to take on issues that they feel passionate about, on either side of the case. To the contrary, ethical rules recognize that such lawyers may--and sometimes must--avoid such cases. A lawyer with a strong personal reaction to a particular issue may in some cases have a personal conflict of interest--sometimes even a non-consentable conflict. Lawyers confronted by a client who insists on a course of action that is repugnant to them may sometimes be able to withdraw from that case. And in a broader sense, lawyers often avoid whole practice issues that they believe would confront them with too many emotional or political dilemmas, such as criminal prosecution or defense. Again, I think there are some valid aspects to the general argument that lawyers are required to bring a clinical, detached perspective to their work. And I worry that some of the general drift of some of the comments both makes too many class-based assumptions about students' likely emotional reactions and capabilities, and gives too much weight to some of the aspects of our emotional, offense-centric age. Nevertheless, I think the general argument that lawyers are necessarily required to immediately set to work on a case no matter their deeply held personal response to it is overstated and ultimately not that helpful here. And, of course, whatever we think about those general issues, we are still dealing here specifically with an exam question, not class curriculum or discussion.
3) I assume that there will be several general responses to some of the parade of hypotheticals that have been marshaled in defense of this exam question, or more generally in defense of teaching and examining on issues that might upset students. One will be the "Ferguson is different" argument, and some comments have gestured in that direction. Whether it's accurate or not, it is insufficient. We need to know why this case is different. Is it the politics of the issue? The identity-based issues it raises? Its emotional pull? The amount of time that has elapsed since the issue came up? We need to know more, not only to evaluate this particular exam question but to address future questions.
Another might be to privilege students' claimed emotional reactions completely and categorically. There are obvious problems with that approach, both normative and practical. But it's not wholly irrational. The question is how to implement such an approach. Say a professor avoids an issue like Ferguson, on the grounds that too many students might be upset, and instead asks a question about a suit against a tobacco company involving "light" cigarettes. One student in the class lost a parent to lung cancer a week ago. Is it advisable to discount that question for that student? How about a student who lost a relative to lung cancer two years ago, if she says she was still upset by the question? How about a question about the Holocaust? If advisable, is this deferential approach administrable? Finally, does everyone agree that politically sensitive issues should not be categorically avoided, and that asking students to see both sides of that issue is wholly acceptable? For instance, is there anything wrong with asking a student, in an essay question, to provide the best possible critique of Brown or Lawrence or Windsor? Is such a question insensitive? If a student expresses emotional upset at being asked to do so, how should we respond to such a claim?
My sense, after reading through the comments on Howard's post (the comments on Eugene's post were less useful, in my view), is that whatever the answers to these questions are, we will get clearer discussion and better guidance by discussing other cases and hypotheticals rather than focusing solely on Ferguson. I would find it more helpful if commenters would propose other exam questions involving other issues, and give some guidance on how to deal with those questions, both for the class as a whole and for individual students. Even when one decides that some practical question, such as what constitutes an acceptable or unacceptable exam question, requires case-by-case judgment, there is still some kind of incipient rule or principle behind those judgments. That is what needs to be uncovered here.
Thursday, December 04, 2014
The New Republic, 1914-2014. R.I.P.
I was only in journalism for a year or so before attending law school, but I have always retained a strong loyalty to that profession. So, despite not having blogged much lately, I'm moved to write by the news that one of my favorite magazines, The New Republic, has died--and on its hundredth anniversary, no less.
Although the news is sad, it should have been foreseeable. The magazine had gone through plenty of cycles of changes in owners and editors and weathered most of them. But, like most longtime fans of the magazine, I found it apparent that the magazine had been getting increasingly bad since its purchase in 2012 by Chris Hughes. The content got ever shorter and ever dumber, as one would expect of a property owned by a former Facebook executive. And, as one would expect of a property owned by the former "coordinator of online organizing" for a presidential campaign, the magazine also went from being liberal-centrist in politics but contrarian in spirit, to engaging in pure political hackery without any governing philosophy--or ideas--at all. The print magazine was thin and jumbled, and the online site was an insult to itself and its readers alike. It was tragic to watch--like watching a patient get sicker and sicker every day. And now it is finally dead, alas.
Well, not technically dead. But the last decent, responsible people have left the building. I can't help but think today of our friend Dan, who was also a longtime friend and fan of the magazine. When I lamented what was happening to the magazine, he would remind me that the magazine at least had its "back of the book" section, run by Leon Wieseltier. The back section was always an excellent source of essays and book reviews, including pieces by legal academic luminaries such as Richard Posner, Cass Sunstein, Justin Driver, and many others. Now, apparently, Wieseltier is gone. With him goes Franklin Foer, the magazine's editor, who certainly contributed to the magazine's decline but at least provided a link to adult journalism. What remains is Hughes, who has said of his property, "I don’t call it a magazine at all. I think we’re a digital media company," and Brian Beutler, a Salon veteran whose online work first made me realize just how bad TNR was getting, and whose work has only gotten worse since then.
If Dan were still with us, I think he would now agree with me that the last reasons to look at the magazine have vanished and that it is effectively dead. I am so sorry to see it go. I can't but help but wonder if there are any good magazines of its sort left.
Tuesday, November 18, 2014
Lowe on American Legal History Since 1998
I quite enjoyed Jessica Lowe's article, Radicalism's Legacy: American Legal History Since 1998. An economical 12 pages, it surveys developments in American legal history scholarship in the past decade and a half or so, framing it around the continuing influence of Robert Gordon's famous piece Critical Legal Histories.
In Lowe's telling, much of the key work done since 1998 can be grouped into a few categories: "The first four dominated the field: legal pluralism, civil rights and rights consciousness, state-building, and citizenship. In addition, other scholars experimented with the construction of racial identity, often using the more ethnographical or narrative approach favored by critical race theory. Finally, senior scholars continued to produce more sweeping studies, often examining American law over the course of ambitious spaces or time frames."
Of particular interest to me is Lowe's discussion of the "totalized contingency," in Christopher Tomlins' terms, that emerged from later efforts to carry on Gordon's work. Quoting Tomlins, she writes:
The proliferation of contingency and indeterminacy had spawned a field full of studies emphasizing merely, as Christopher Tomlins termed it, "plurality." Not just legal pluralism, but something deeper, darker. Tomlins cautioned, "ultimately, totalized contingency is a deeply tragic form of subversion, for it does not discriminate in the paralysis it [metes] out. In undermining the authority of all narratives, it spares none, even those that may be most precious to the powerless, those whom we once desired to liberate."
Lowe herself draws a more ambivalent conclusion from this state of affairs, finding positive as well as negative possibilities in it. It seems like mostly good news to me. Unyoking the critical historical project from any particular political valence or mission, other than "contingency and indeterminacy," creates the possibility of all kinds of interesting critical and reconstructive work from a variety of political perspectives. Those may include conservative, religious, and illiberal ones, as well as the more conventional academic-left perspectives. This is how I read Steve Smith's valuable historical and theoretical writing on law and religion, which I have called an excellent example of "Conservative Critical Legal Studies." On the whole, this seems like an obviously positive development.
Regardless, Lowe's article is interesting, clean and clear, and a good source for key writing in the field of American legal history in the past 16 years. I recommend it enthusiastically.
Tuesday, November 11, 2014
Jotwell Anniversary Conference Papers on Legal Scholarship
I have been associated with Jotwell for some time now as one of the editors of the constitutional law section. I continue to find it a good site with a worthwhile mission. Jotwell just had its fifth anniversary, and held a conference--"Legal Scholarship We Like and Why it Matters"--to mark the occasion. Whether and why legal scholarship--indeed, most scholarship in most disciplines--matters continues to provoke animated debate and discussion. I think it does, although I think there is nothing wrong with asking how much it matters, and how much of it, or of what kind, we should subsidize. Good answers to the latter questions might inform my own work, or my institutional decision-making as a faculty member; I doubt, however, that any answer to the first question would much influence my first-order decision to engage in scholarship.
In any event, the conference papers address not only whether or why scholarship matters, but a variety of other questions: how to do it better, how to count it better and whether to count it at all, how to distribute it, and so on. The papers look very interesting and delightfully brief. They can be found here.
Monday, November 10, 2014
Sepper on Hobby Lobby
I'm pleased that my paper "The Hobby Lobby Moment" is finally out in print. I hope readers will find it interesting. For those in my field of law and religion, I'm also happy to recommend this fine comment on the Court's recent decision in Town of Greece v. Galloway, which argues that the case "highlights the deep divisions among the Justices on a central question underlying the Establishment Clause: what the government is required to do, or even permitted to do, to accommodate religious pluralism in an increasingly diverse society."
Mostly in this space, I want to commend to readers Elizabeth Sepper's response to my article on Hobby Lobby, titled "Reports of Accommodations' Death Have Been Greatly Exaggerated." I haven't read it fully yet, and I'm sure that we'll see things rather differently, but I have always benefited greatly from her work on health care and conscience. From the introduction:
I agree with Horwitz that the contraceptive controversy destabilized our social and legal consensus. Horwitz, however, mistakes what that consensus was and misidentifies the cause of its collapse. In this Response, I argue that the consensus has long been against granting religious exemptions from generally applicable laws to commercial entities and to for-profit corporations in particular. Instead, our consensus favors equal citizenship of individuals and, as a result, limited rights for powerful commercial actors. The Hobby Lobby moment threatens this consensus.
I further propose that while the marriages of same-sex couples may have added fuel to the fire, it was the union of religious and economic conservatives that threw the marketplace into flux. Their religious-libertarian arguments persuaded the Court to extend accommodations into the commercial sphere in an unprecedented and potentially expansive way.
Friday, November 07, 2014
Weekend Reading: The Hobby Lobby Moment
Here's an abstract of my latest piece on SSRN, "The Hobby Lobby Moment." The final version should be published and posted on the law review's website soon and I will provide links when that happens. Enjoy.
American religious liberty is in state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. is both a cause and a symptom of this condition. It suggests the unsettled nature of one of the central elements of the church-state settlement: the accommodation of religion. Beyond that, Hobby Lobby -- both the Supreme Court decision itself, and the public controversy that has surrounded the contraception mandate litigation -- raises a host of other issues: the interpretation of the Religious Freedom Restoration Act, the status of reproductive rights, the disputed relationship between religious liberty and LGBT rights, and the changing nature of the commercial marketplace. More broadly, the Hobby Lobby controversy says much about the relationship between law and social change.
This article explores these issues. Although it analyzes the opinions in the case, its primary focus is on Hobby Lobby as a "moment": as a stage in the life-cycle of both church-state law and the social and legal meaning of equality. An analysis of the "Hobby Lobby moment" suggests that the legal and social factors that turned a "simple" statutory case into the blockbuster of the Term lay largely outside the four corners of the opinion itself. The Hobby Lobby decision speaks to these larger controversies but does not resolve them.
After examining the legal dispute and the decision in Hobby Lobby, this article discusses the legal and social sources of the controversy that surrounded it. Legally, it finds a rapid dissolution of consensus around a key aspect of church-state law: the accommodation of religion, which has become a foregrounded subject of legal and social contestation. This contestation has been driven or accompanied by significant social change of various kinds. The article focuses on two areas of social change that figure prominently in the Hobby Lobby moment. First, although the Hobby Lobby decision itself involved an important social issue -- women's reproductive rights -- I argue that the larger controversy surrounding the case had much to do with the rise of LGBT rights and same-sex marriage and their relationship to religious accommodation. Second, I argue that the controversy involved changing views concerning the nature of the commercial marketplace itself. The paper concludes with some observations about what the "Hobby Lobby moment" teaches us about the relationship between law and social change.
Amendment One, Alas
I'm grateful to Michael for his post on Amendment One, the Alabama anti-foreign/religious law amendment. As he notes, I wrote a couple of editorials that were published in a number of newspapers and other forums in the state, urging voters to reject this amendment. At best, in my view, the foreign/religious law piece of the amendment (there is also a full-faith-and-credit provision, one that appears to be aimed at the recognition of same-sex marriages, but I did not focus on that provision) simply repeats existing law, and so was quite unnecessary. Passing an unnecessary amendment was actually worse than unnecessary, however, because this governor and administration have been adamant about saying that they would focus on the economy, not symbolic or culture-war issues. To the extent that the new law requires even a small expenditure of money to achieve a redundant purpose, it runs contrary to their stated agenda and was the opposite of a conservative measure.
At worst--who knows? Every new law contains ambiguities. This law was not especially carefully drafted and certainly contains more than its share. And, as Michael points out, there is the chance--it has happened in at least one state with a somewhat similar law, and the same idea seems to be reflected in the case he discusses--that courts will take this narrowly worded amendment and interpret it expansively and dangerously. On its face, the amendment suggests that only a particular provision of, say, a contract, will be voided if it violates public policy. But a court might cite Amendment One as a basis to refuse to enforce a perfectly reasonable foreign or religious law provision on the basis of general concerns about the fitness of the foreign or religious legal regime. Since some such provisions--those requiring husbands to grant a get, for instance--are actually protective of the potentially disadvantaged party, this would give us bad results that wouldn't be required under current law.
There is very little good news about the passage of this amendment. But there are two glimmers of hope. The first is that the measure was loudly and clearly opposed by a variety of faith groups--predominantly black and predominantly white, evangelical and non-evangelical, and politically conservative and liberal. I was hoping that the opposition of the Christian Coalition, for example, would be enough to fracture the reflexively conservative vote in this state and kill the amendment. It was not to be. But it is a positive thing that these groups opposed the amendment. They understood full well that the intended target of the measure was Islamic law, and still opposed it.
In that sense, as I wrote in this paper, this is an important effect of decisions like Larson v. Valente, which erects a bar against sectarian preferences in laws burdening religion, and which was relied on by the Tenth Circuit in striking down the first-generation anti-sharia amendment in Oklahoma. A legislature that cannot aim its laws at a particular sect is faced with the choice to either drop the measure or to apply it to everyone, regardless of which sect they belong to. That creates political coalitions among the faithful, so that, say, the Christian majority is willing and eager to band together with the Muslim minority to oppose the generally applicable law. That's what happened in Alabama. Although it wasn't enough, it was still a pleasure to see.
The other aspect of this episode that offers some small cause for optimism is that Amendment One was at least a second or third generation form of anti-sharia law. To avoid the problems of earlier generations of anti-sharia laws, such as Oklahoma's, it aimed at every religion and at all foreign law. And, precisely because it did so and its drafters understood that actually banning the enforcement of all foreign and religious law would be a terrible idea, the bill went one step further: It made itself basically redundant and toothless. The law does not forbid the application and enforcement of foreign or religious law altogether. It only bans their use when they would violate state or federal constitutional law. That means that, in most cases, an agreement that refers to Islamic (or Jewish, or Swedish) law can still be applied and enforced in Alabama today, just as it could before this unnecessary amendment was passed.
As both Michael and I recognize, the law might be enforced incorrectly and badly. If interpreted correctly, however, it will turn out to be so much excess verbiage. Amendment One is still stupid and dangerous, and its only apparent purpose was as a get-out-the-vote measure. But it may also demonstrate that the Constitution has worked with respect to anti-sharia laws, even if some version of those laws continues to be politically successful. In order to avoid having these laws struck down, the supporters of anti-sharia and anti-foreign law measures have had to turn them into mostly empty exercises. Thank God for that.
Friday, October 24, 2014
"It is a book you will not be able to put down often enough."
I was not favorably impressed by Bruce Allen Murphy's recent biography of Antonin Scalia, Scalia: A Court of One. It was certainly a substantial labor, but in my view not a successful one as a matter of either substance or style. My review of the book is finally out in Commonweal. I note that Commonweal, which is currently celebrating its ninetieth birthday, is currently providing free access to the entire site for registered readers.
A number of people were struck by how favorably the book was treated in some early reviews by liberal writers, despite what I consider its highly evident flaws. (By no means all of of the liberally inclined reviewers praised it, to be sure.) It was also the target of enthusiastic evisceration by conservative writers, albeit there was much more basis for those criticisms. I suggest in the review that there are in fact two or three sound basic points in the book, but those points are not new. And
[w]hat’s new, alas, is not useful. Murphy['s book] is full of opinions and speculations. The opinions are conventional, the speculations tendentious. They’re easy to spot, at least: you know you’ve reached the end of the record and the beginning of fanciful speculation when the footnotes suddenly vanish. There are countless examples of overconfident speculations that quickly become treated as fact, and of downright questionable conclusions.
Whether Scalia: A Court of One is good or bad, fair or not, has been largely irrelevant [to a number of early reviews and discussions]. What matters is the occasion the book provides for liberals to come together in gleeful disdain for their stock villain, or for conservatives to gather in joyful defense of their hero. They’ve relived the Scalia controversy rather than reviewing the book. An experienced judicial biographer, Murphy has chosen well and labored hard—but in vain.
Enjoy. And be sure to read Justin Driver's excellent review of the book in The New Republic, whose "back of the book" continues to delight.
Con Law Offerings at AALS This Year
The panels in and around constitutional law at the upcoming AALS annual meeting are pretty impressive this year. Here's the AALS promo, with links to the panel descriptions and lineups. I was slightly involved in the Law and Religion program, which I think is extremely timely, has a great list of speakers, and will be well worth attending, for people interested in equality as well as those interested specifically in law and religion issues. And I look forward to catching the Fish-and-Posner Show.
- Perspectives on Federal Power Under the Reconstruction Amendments (Section on Constitutional Law)
- Liberty-Equality: Gender, Sexuality, and Reproduction- Griswold v. Connecticut Then and Now (Section on Constitutional Law, Co-Sponsored by Sections on Legal History and Women in Legal Education)
- Religious Beliefs and Political Agendas: What Role Should Faith Play in the Public Square (Section on Jewish Law, Co-Sponsored by Section on Islamic Law)
- Engendering Equality: A Conversation with The Honorable Ruth Bader Ginsburg, Associate Justice, Supreme Court of the United States, and New Voices in Women's Legal History (Joint Program of Sections on Legal History and Women in Legal Education, Co-Sponsored by Section on Constitutional Law)
- Transgender Equality: Prisons, Workplace, and Academic Institutions (Section on Sexual Orientation and Gender Identity Issues)
- Voter Suppression, the 2014 Elections and Beyond (Section on Civil Rights)
- The Future of Marriage (Section on Family and Juvenile Law)
- The Voting Rights Act at 50 (Section on Election Law)
- How (Not to) Provide Statutory Accommodations for Religion (Section on Law and Religion)
- Congressional Dysfunction and Executive Lawmaking During the Obama Administration (AALS Academic Symposium)
- Legislation/Regulation and the Core Curriculum (Section on Legislation & Law of the Political Process)
- Designing a Regulatory System for the Age of Decentralized Virtual Currencies (AALS Crosscutting Program)
- Competition Policy in Health Care (Section on Antitrust and Economic Regulation, Co-Sponsored by the Section on Law, Medicine and Health Care)
- The Rising Bar to Federal Courts: Beyond Pleading and Discovery (Section on Civil Procedure)
- After Bay Mills: The Longevity of Tribal Sovereign Immunity (Section on Indian Nations and Indigenous Peoples)
- The Role of History in the Federal Courts Canon (Section on Federal Courts)
- The Future of the Federal Housing System (Joint Program of Sections on Financial Institutions and Consumer Financial Services and Real Estate Transactions)
- Net Neutrality: Where does the FCC go from here? (Section on Mass Communications Law)
- Anita F. Hill, Supreme Court Confirmation Hearings, and a Screening of the Film "Anita" (AALS Crosscutting Program)
- The Fifty Years War: Can Legislation Ameliorate Poverty? (AALS Crosscutting Program)
- Richard Posner and Stanley Fish: Revising Interpretation (Section on Law and Interpretation)
Sunday, October 19, 2014
An Op-Ed on Alabama's Amendment One
Here's an op-ed from the local paper, the Tuscaloosa News, discussing a state constitutional amendment that is on the Alabama ballot next month. That amendment, which bars the application or enforcement of "foreign" law (including religious law, and indeed the history of this provision suggests it is just a next-gen anti-Sharia law) in highly limited circumstances--circumstances that I argue are already covered by current law, rendering this law redundant at best--can be found here. More background on the amendment can be found at Ballotpedia. Comments are welcome, and more detailed inquiries via email are also welcome. Enjoy. Here's the opening paragraph:
Normally, when legislatures do foolish things, at least they do them on their own. But sometimes they ask for our help in being foolish. Alabama's Legislature has done so this year by putting Amendment One on the ballot in this November's election. We should decline the invitation.
Wednesday, October 15, 2014
Reposted: "Interview Tips . . . For Faculty"
Following up on Zak's post below, I'm reprinting a post I put up some four years ago, back in the springtime of my blogging years. It asks what interview tips we might give to interviewers, rather than candidates, at the faculty hiring conference. I have not reexamined it and I don't know what I would, on further reflection, change about the advice; I offer it for whatever it's worth and not as a statement of my current views. The original post is here and there were some useful comments on it; I'm in transit today and have closed comments on the current post. And, of course, interviewers looking for something to read on the plane to DC might print out and read Martha Nussbaum's sobering article Cooking for a Job: The Law School Hiring Process. The post follows:
* * * * *
It's just about meat market time again, and as always the interwebs are filled with advice for candidates, including recent posts here and at the Faculty Lounge. Perhaps it's time we change focus a little by asking what interviewing tips we should offer to hiring committees. Having been through the process, most of us are perhaps a little able to offer some suggestions about what interviewers at the meat market ought to do or ought not to do, both for the sake of a friendly interview and for the sake of a successful hiring process. I welcome suggestions, although I'll start things off with a few tips of my own.
1: Be on time. We always tell candidates to knock politely then wait patiently. But what's good for the goose is good for the gander. In a room with six or more people, surely someone is capable of keeping his or her eye on the clock and keeping things moving. It seems discourteous to make interviewees wait. This includes the hour after lunch; if your 1 o'clock candidate can make it back in time, so can you. (Conversely, candidates, keep an eye on your own watch; if the interview is over, I know you may want to linger as long as the faculty want to keep chatting with you, but have some consideration for the next person waiting and politely make your excuses. "I'm sorry, but I've got to interview with Yale in a minute" is a good exit line.)
2: Have something specific to say about your school. Candidates are often told not to ask boilerplate questions about the law school they are interviewing with -- to have done some studying and have pertinent questions to ask. Again, the same thing should be true the other way around. Telling a candidate that you have a fine, collegial environment with lots of support for teaching and scholarship is like a law firm telling you they have excellent work and a friendly environment: it may (or may not) be true, but it's not very helpful. Have answers ready about what actually distinguishes your school (if anything -- it's not clear that there's always a really great answer to this question), what specific virtues it has and what challenges it faces and how it plans to meet them, what its five-year goals are, what the living environment is actually like (a selling point for many schools, in my view, including those outside the great cities, which can become commuter schools for students and faculty alike), and so on -- and make them as specific as you reasonably can. You may not always want to be thorough in your disclosures, but be honest in what you do say and as candid as you can be.
3: Ask about the candidate's scholarship, not your own. I suppose this could be two recommendations. First, you should actually ask about the candidate's scholarship. Law schools at the AALS are (or were -- I suspect it's no longer as true) divided between those that spend the whole half-hour asking about the candidate's job-talk and those that devote only a few minutes, if any, to that question. I'm not entirely sure the former approach makes sense, but I'm sure the latter approach no longer does, since even teaching-oriented schools are increasingly hiring for scholarship. So ask about it. And don't use that portion of the interview to bloviate about your own work, or to judge it based on how it relates to your own work or, alas, your own politics. (I was once asked at the meat market what the most interesting litigation I was working on at the time was. It was my defense-side work on the slavery reparations litigation. I do not believe some of the interviewing faculty were pleased with that answer.)
4: Don't ask questions you don't care about the answer to. Every interview can run a little dry, and of course there will be some standard questions. But don't just fill the time with useless questions. They bespeak your own lack of imagination and suggest that you either don't care much about this candidate or don't care much about your own hiring process. Ask engaged and specific questions and actually listen and respond to the answers.
5: Skip the "private" cocktail party. I think this one might divide opinion a little more. Not every school does this, but several schools invite anywhere from a substantial number of promising candidates to all of their interviewees to a cocktail party. Shy as I am, I suffered through a couple of these. I tend to think they're a waste of time. First, one feels obliged to attend, and the coerced nature of the attendance makes it sort of like...well, like a legal ethics class. Second, it advantages the glibly social over the shy and quiet (a little personal bias here, I know), without telling anyone what kind of friend or colleague you'd actually be like. Third, the more people you invite the less purpose there is to the whole thing -- except to demonstrate that you can make people who want an offer dance to your tune. Just skip it, and if you want to get to know a few candidates better, have a small dinner for them.
6: If you have a room for alumni candidates, be there. Schools with large numbers of alumni applicants often reserve a room to host those alumni and give them a place to kick back between interviews. I think this is a great idea, and I'm grateful to my alma mater, Columbia, for doing so. If you're going to do this, it might also be helpful to make sure you have some faculty members there, or at least a relevant dean, to offer advice and feedback to the candidates if they want any. (Columbia did a good job on this, as I recall.)
7: Clean up after yourself. Hotel rooms can come to look like, well, hotel rooms over the course of a day. Keep the room professional. Put away all the used glasses between interviews, keep the bathroom fresh, and so on.
8: Be discreet. That candidate waiting outside the door for the next interview can hear you assessing the virtues and flaws of the last interviewee. Be quiet and discreet, in the room and in the hallways or elevators; save up most of your comments for debriefing sessions. Personally, it also drove me a little nuts to be waiting outside while the last interview ended on an uproarious note of laughter, but I'm not sure I could enforce any relevant rule on that score.
On Houston's Broad Supboena [UPDATED]
Eugene Volokh has a good post on developments in litigation in Houston around that city's equal rights ordinance. The only report I've seen so far from a mainstream outlet is this Houston Chronicle story, which reports in part:
Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. City attorneys issued subpoenas last month during the case's discovery phase, seeking, among other communications, "all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession."
Of course a good deal of the reporting on the development is from partisan outlets and should be read, if at all, with caution (a number of headlines out there, for instance, talk about Houston seeking "oversight" of sermons and so on). But while I would want to know more, I find the Chronicle report and the language quoted in it troubling on its face. Better than having to rely on overheated sources (including the press release by the ADF, which is involved in the case) would be more mainstream media coverage of this request, which I think certainly deserves it.
With his typical indefatigability, Eugene has already worked up a decent chunk of First Amendment analysis and concludes that the precedents don't incidate some pre-existing slam-dunk First Amemdment argument. Based on a brief search last night, I concur, although I would be happy to hear from others. Another case one might want to look at is the Ninth Circuit's opinion in White v. Lee, 227 F.3d 1214 (9th Cir. 2000). There are definitely distinguishable facts and I am not suggesting the case is on all fours, but it may provide useful additional reading. In that case, the court examined a HUD investigation of some neighbors who opposed the conversion of a nearby motel into a multi-family housing unit. HUD "questioned the neighbors under threat of subpoena about their views and public statements regarding the challenged project; directed them to produce an array of documents and information, including all involved parties' names, addresses and telephone numbers and all correspondence or other documents relating to their efforts in opposition to the project"; and so on. The panel, per Judge Reinhardt, stated:
The investigation by the HUD officials unquestionably chilled the plaintiffs' exercise of their First Amendment rights. It is true that the agency did not ban or seize the plaintiffs' materials, and officials in Washington ultimately decided not to pursue either criminal or civil sanctions against them. But in the First Amendment context, courts must “look through forms to the substance” of government conduct. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Informal measures, such as “the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation,” can violate the First Amendment also. Id.8 This court has held that government officials violate this provision when their acts “would chill or silence a person of ordinary firmness from future First Amendment activities.” Mendocino Environmental Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.1999) (citation omitted). Here, the type of investigation conducted and the manner in which the individual defendants carried out their functions more than meets that standard.
But while the churches' argument that Houston's conduct constitutes a clear First Amendment violation is at least open to question and we can discount some of the more hysterical rhetoric, I think it is entirely reasonable to be disturbed by the breadth of the discovery request, and to think of it as, so to speak, touched with First Amendment concerns. Certainly, after a decade and a half of rhetoric about various aspects of governmental investigative conduct, whether federal or local, being designed to "intimidate" or "suppress" political dissent or activism, much of which I found overstated but hardly without any basis, this story at least deserves to be approached by the same individuals with the same sorts of concerns. And certainly people have raised concerns about similar uses of other investigative techniques in other cases, such as when Slate and other outlets wrote about the freedom-of-information request aimed at Professor Douglas Laycock, whether they thought those requests raised direct First Amendment concerns or not.
At a minimum, I think, the court should examine the request skeptically and demand strong reasons for its breadth and for some of the specific requests made by the city; the mainstream news media should dig further into the story and demand fuller explanations from the city for its conduct (the city declined to comment for the Chronicle story); and the city should be subject to public criticism. Again, I'm happy to hear from others.
UPDATE: With thanks to Eugene for the link, here's an update. Quoting from the story:
[I]n a breaking development Wednesday, Houston Mayor Annise Parker appeared to be backing away from the initial requests. Janice Evans, a city spokeswoman, told Law Blog in a statement:
Mayor Parker agrees with those who are concerned about the city legal department’s subpoenas for pastor’s sermons. The subpoenas were issued by pro bono attorneys helping the city prepare for the trial regarding the petition to repeal the new Houston Equal Rights Ordinance (HERO) in January. Neither the mayor nor City Attorney David Feldman were aware the subpoenas had been issued until yesterday. Both agree the original documents were overly broad. The city will move to narrow the scope during an upcoming court hearing. Feldman says the focus should be only on communications related to the HERO petition process.
Saturday, October 11, 2014
The Relationship Between Scholarship and Advocacy
This is a pet interest of mine and is fairly well covered and debated in the latest issue of the University of Illinois Law Review in the context of the ACA litigation (h/t: Andy Koppelman). From the relevant page of the Law Review website:
Issue 4 next presents 5 essays responding to Professor Hyman’s article “Why did Law Professors Misunderestimate the Lawsuits against PPACA?” Professors Ramseyer, Blackman, Blumstein, Mazzone, and Koppelman all contribute to this discussion on the Affordable Care Act. The final article, by Professor Hyman responds to and summarizes the foregoing discussion.
Without completely endorsing it, I particularly recommend Jason Mazzone's piece, Obamacare and Problems of Legal Scholarship. (I think that, by way of background, Part IV of Josh Blackman's piece is also useful. I find myself rather skeptical that Ramseyer's piece is as persuasive, with all due respect. It relies on general rather than field-specific data, often rather old data, and not necessarily the most relevant data, and then engages in rather broad, non-field-specific speculation by way of explanation.)
I quoted part of Jason's article on my FB page and got some interesting responses. Let me quote him more fully here, placing in bold the text that provoked the responses I got elsewhere, and see what comments result. The passage addresses an op-ed Jason wrote fairly early in the ACA litigation suggesting that the Commerce Clause arguments in the litigation might have greater purchase than early academic skeptics were suggesting:
[T]he reactions I found most curious came from fellow law professors. Almost without exception, the professors who contacted me (or who wrote responses in other settings) expressed bewilderment, disappointment, even anger that in my op-ed I had “endorsed” the Commerce Clause challenge the plaintiffs were making to the individual mandate. I had, of course, done no such thing. All the op-ed did was explain why I thought the plaintiffs’ Commerce Clause arguments would have greater traction than other commentators were predicting and that a success for the government at the Supreme Court was far from certain. No matter. To the academics who responded to my op-ed, my analysis was actually advocacy. That meant I was on the wrong team.
The lessons Professor Hyman draws from the PPACA episode go to the future role (or not) of professors in predicting case outcomes. I offer a different conclusion, one that concerns professors not as predictors but as scholars—the role we are actually meant to be playing. The failure of constitutional law professors to distinguish between advocacy and analysis is not confined to the PPACA episode I have described. Rather, this failure is commonplace.
I won't quote my FB interlocutors, although some or all of them graciously gave me permission to do so, in part because I'm not going to reprint or do justice to their responses here. In very brief summary, the responses centered around the idea that scholarship, especially in our field, just is advocacy; that this can be productive; and that one must parse the purposes that legal scholarship might serve more carefully before rendering too sweeping a judgment.
I think the last point is a good and important one. It does not, however, answer questions about what professional or normative considerations we should draw for particular types of scholarship serving different sorts of purposes. I am less in agreement with the first two points. And I doubt that any of these points would justify a scholar expressing "disappointment" that a scholar had "endorsed" or given traction to some legal argument because he wrote an op-ed pointing out that this argument might actually have traction on the courts.
I do have some caveats about Jason's piece. I think the present-tense-oriented nature of his piece, which concludes that "something may be wrong--very wrong--within the [legal] academy itself," assumes too readily that the mixture of legal scholarship and legal advocacy, and the problems it creates, is of recent vintage and not a long-standing issue. I think his comparison to other fields is problematic, both because 1) as I noted above, we should do more careful thinking about the purpose and function of scholarship in our field in particular and be careful in assuming that particular comparisons are appropriate, and 2) we should be cautious about assuming no such problems exist in other fields, especially in the humanities and social sciences, or that they are properly dealt with there.
That said, I think the sentences from Jason's piece quoted in bold above have a strong basis in fact and do present cause for concern. Rather than come up with absolute condemnations ("all legal scholarship is political crap," "the left has ruined serious legal scholarship," or what have you) or absolute rules barring law professors from doing both things, I do think we need to think much more seriously, publicly, and collectively about what a proper ethics of the dual scholar/advocacy or scholar/activist role entails. I think it would make a proper occasion for a print and/or live symposium, AALS panel, or (God help me) white paper of some sort.
Thursday, September 25, 2014
How to Save the World Without Being Happy or Virtuous?
It was not surprising that an op-ed in the Harvard Law Record recommending that fledgling graduates of schools like Harvard "save the world by working in biglaw" would provoke some attention and reactions. Paul Caron has links to that op-ed and some responses that ran in the Crimson. At Above the Law, the more or less inimitable Elie Mystal has a forceful if not especially cogent response as well. I am somewhat more sympathetic to the initial piece, although that does not constitute a complete endorsement.
Mystal's response is somewhat illustrative of what I think is the rather confused reaction that met the piece. That piece argued--without factoring in whatever social utility is provided directly by working in a big law firm itself--that working in BigLaw is the "greatest utility maximizing option" these students have, because they could simply donate 25 percent of their income to worthy causes, and that the good done by this would outweigh the good done by working directly and less remuneratively in lower-paying public service jobs.
Mystal made two arguments. First, and quite rightly, he pointed out that is is unlikely in the extreme that "any Biglaw associate, anywhere, who is going to give away 25% of their post-tax salary." True enough! But he makes his first error here, writing style aside. The question posed by the op-ed writer is not whether current BigLaw types would donate a quarter of their income to worthy causes; it is whether the kinds of people who normally work in public interest law would donate a quarter of their suddenly vastly expanded salary to such causes. There are perfectly good reasons to think that this too is unlikely. Just because you want to do public interest work and are sufficiently dedicated to doing so to take a lower-paying job, that doesn't mean you are going to give away a quarter of a large salary if you actually get that salary. I assume at least some of those people would, naturally enough, buy condos, pay down their debt faster, take vacations and/or gather the beginnings of a nice wine cellar, lease high-end luxury hybrid SUVs, and so on. Nevertheless, one would think on Mystal's logic, or that offered by other critics of the op-ed, that if the kinds of people who do public interest law took BigLaw jobs for the express purpose of dedicating more of their income to charitable giving, those people would be more likely to do so.
Ah, but would they be happy? Would they be fulfilled? Would they be decent people? That's the second point of Mystal's rebuttal, more or less, and it is a theme that runs through the Law Record rebuttals as well. Thus, one writer acknowledges, "I love my work and being engaged with causes I care about makes me happier. This does not reduce or demean the impact of the work I am involved in. For those who have the all the choices of employment at their fingertips, we should all graduate into employments we love. With all the choices in the world, I also hope we’ll choose well – taking seriously the power society has handed us because of our degrees and profession." And Mystal, presumably having done some research or reporting on this question, talks a bunch about how "people who actually care about the public interest...think." One friend made what I thought was a better, more subtle version of this argument, suggesting that it matters that people do intrinsically virtuous things, regardless of the net social benefit to others.
My reading of the initial op-ed is that its basic answer to these lawyers is, "But why should I care about you?"...
... The writer was making a strictly utilitarian argument, with a focus on maximizing overall social utility. More specifically, I think, his implicit focus was on maximizing the well-being of the poorest and most suffering among us, since he did not bother to account at all for any possible utility increases stemming from working for a corporate law firm itself. He was not arguing that the would-be public interest lawyers would be happier or more fulfilled or more decent people if they took his recommendation. And, really, under that set of assumptions why should he, or we, care that much about that? If we're erecting a utilitarian argument aimed at increasing the well-being of the least among us, the fulfillment and virtue of elite law school graduates should be, with one or two caveats, irrelevant. What we want to know is whether more people in need will do better, not how the people who already have those opportunities will feel about themselves.
Of course, most of us are not utilitarians. Mystal's current job certainly indicates he is not. So does mine. I once heard a law professor say, fairly earnestly, that they wrote legal scholarship "to change the world." That seems unlikely, and from a utilitarian perspective even more doubtful; probably the welfare of others would have seen a net improvement if this scholar--whose work is excellent and has my full respect--had quit the legal profession altogether and become a social worker. I assume that person, like most of us--like me--writes because writing brings him or her a great deal of personal satisfaction, and will stick with it even if it becomes clear that his or her suggestions for legal reform will bear no fruit at all. I assume personal satisfaction is one reason that graduates with substantial opportunities (a limited set of individuals, to be sure, but the discussion took place in the Harvard Law Record) take jobs in big law firms. And, of course, I assume people take public interest jobs when and because it will be most satisfying to them personally.*
Without rendering judgment on whether any of this is right or wrong from an absolute moral perspective, it is certainly entirely natural. But it is worth emphasizing again that these factors are just not things the initial author cared about. Unlike Mystal and most of the other people who responded, the only thing the author cared about was easing the suffering of others. If that's our only concern, it's perfectly reasonable to ask whether we--or those people who purport to care primarily or exclusively about alleviating misery and helping others--would achieve better results by giving large amounts of money to others than by taking fulfilling, satisfying work in that area.
Whether that scheme would work is a different question, although it's a perfectly reasonable general question to raise for those contemplating future jobs. The personal happiness and satisfaction of these elite law graduates should not matter much to those of us who truly care about the poor and suffering, to be sure; but we would have to calculate how likely it would be that they would stay in those jobs and/or continue donating if they were sufficiently unhappy in their work. But that's a very different kind of calculation than asking about satisfaction, or what people who care about the public interest think about the world, for its own sake.
Incidentally, while I ultimately am not convinced by the initial op-ed writer's "proposal" (which was really nothing of the sort--it was simply a suggestion that those privileged persons thinking about their future work take a strictly utilitarian approach to that question), I do think that big law firms should get almost entirely out of the business of doing pro bono work directly, with a few exceptions in areas where their existing skill sets would actually render them highly qualified to do that work, and instead mostly pay other, more qualified and dedicated lawyers to do their pro bono work for them. It's true that it won't help the happiness, job satisfaction, or cognitive dissonance reduction of the people who work at those firms. I just don't see why we should care about that all that much compared to doing good for others.
* A side-note: One of the response writers in the Law Record writes: "Even where my work gives me meaning, the emotions I feel while engaging with the world are far from the 'warm and fuzzies' the author assumes adequately compensate me (and equally qualified, intelligent, hardworking classmates) for my work. In fact, in my opinion, when you work with marginalized communities, you are reminded every day how unjust and unfair and disempowering our system is. This does not make me feel warm and fuzzy, but rather pretty angry and upset." This is an interesting addendum. But it does not take into account the degree to which many or most of us--all of us, if Facebook is any indication--derive substantial personal satisfaction from being angry and upset. I assume that for many young lawyers, being angry and upset at injustice is in fact one of the positive factors to be weighed in their individual utility calculus.
Inazu, "Institutions in Context"
John Inazu has a new review up on SSRN of my book First Amendment Institutions. (Incidentally, it makes a fine Rosh Hashanah present.) It is supportive of the general institutional project but carefully critical of some important aspects of its implementation in the book. I am grateful to John for reading it, which places him in a small select club, and for his thoughtful remarks. Here's the abstract:
This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously. Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities. He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries. These chapters bring to life our diverse institutions and their differences. It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates. In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to First Amendment doctrine that can meaningfully distinguish between them? I turn first to pressures internal to Horwitz’s institutional categories by focusing on two of his core examples: universities and churches. I then examine Horwitz’s chapter of associations and suggest broader implications than he acknowledges. I conclude by offering a different way to parse Horwitz’s argument: embracing his institutional distinctiveness within the time-honored public-private distinction that he rejects.
Thursday, September 11, 2014
Still (Unvaccinated) in Hollywood
This is off-topic for me, but I found this lengthy piece in the Hollywood Reporter, suggesting that LA's Westside is experiencing a significant increase in non-vaccinating (or departing from standard vaccination schedules) very interesting. Given its audience, one can understand why the story gives so very much time to vaccination skeptics in the piece, although I think it went overboard on this. Probably the most interesting and dispiriting quotes in the story are those from some of the school administrators, who, it is not hard to discern, would do anything but offend some of their clientele. (That's not universally true; a couple of administrators are fairly straightforward in their concern.) In any event, it's an interesting article.
Wednesday, September 10, 2014
Boston University Law Review Symposium on Dworkin's "Religion Without God"
The Boston University Law Review in recent years has done a superb job of running symposia on new and important legal books. Many of us have lamented the decline in the number of book reviews in legal periodicals, a decline that has corresponded to a rise in the number of books published by law professors in the last decade or so. BU has filled that gap admirably, and sparked some terrific conversations as a result.
The new issue of the Boston University Law Review has two such symposia, on three different books. I was delighted to be rather distantly involved in one of those, a print symposium on the late Ronald Dworkin's book Religion Without God. The symposium can be found here. Notwithstanding my own contribution, it's really a stellar gathering, thanks to the work of Professor Jim Fleming, and I found the pieces well worth reading. The table of contents follows:
Volume 94, Number 4 – July 2014
A SYMPOSIUM ON RONALD DWORKIN’S RELIGION WITHOUT GOD
Introduction to the Symposium on Ronald Dworkin’s Religion Without God James E. Fleming Page 1201
Religion Without God by Ronald Dworkin – Review Jeremy Waldron Page 1207
The Challenge of Belief Stephen L. Carter Page 1213
“A Troublesome Right”: The “Law” in Dworkin’s Treatment of Law and Religion Paul Horwitz Page 1225
Ronald Dworkin, Religion, and Neutrality Andrew Koppelman Page 1241
Dworkin’s Freedom of Religion Without God Cécile Laborde Page 1255
Can Religion Without God Lead to Religious Liberty Without Conflict? Linda C. McClain Page 1273
Religion, Equality, and Public Reason Micah Schwartzman Page 1321
Is God Irrelevant? Steven D. Smith Page 1339
Thursday, September 04, 2014
In a Different Voice
Just a quick, basically neutral observation about the language of Judge Posner's opinion in Baskin v. Bogan: Unlike the language of many of the SSM opinions so far, it is virtually stripped of the kinds of terms and effects that crop up elsewhere. The word "dignity" appears exactly once, on page 38 of a 40-page opinion. At that, it appears in a quotation of another court, and only in passing. Similarly, the word "animus" appears just once, at page 27. Brown v. Board of Education, cited in at least three of the SSM cases so far, is absent; so is "segregation." If the opinion is forceful and effective, it nevertheless speaks in a different register than the one that many other judges writing in this area in the past few months have strained at achieving.
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.