Wednesday, April 17, 2013
Blackman on "History" and Biochemistry
In an enjoyable and well-written post, Josh Blackman asks whether originalist questions present anything more difficult or different from other complex questions the courts are called on to resolve. He writes:
A common attack on originalism is that judges are not trained historians, and lack the skills to understand the nuance and context of history. I have never found this argument particularly compelling, because judges are frequently called on to understand complicated disciplines outside the law. . . .[M]y point goes more to methodology than substance. Judges are called on to understand difficult concepts. Relying on briefs by attorneys who specialize in these areas, judges, by their best lights, come to an answer. . . . History seems to be even closer to the area judges train in than biochemistry. Considering the competing briefs of historians allows for an adversarial review of the original public meaning of certain concepts.
With respect, I think this is not yet a sufficient response. For one thing, judges could of course do both badly. The fact that judges are (or consider themselves) called on to decide complicated issues in other fields doesn't mean they do it well, so it doesn't tell us whether it's a problem with respect to history; it just tells us it's not a unique problem.
For another, in many such areas there is a substantial administrative agency structure in place to allow first-order evaluation of these questions by experts with significant experience in the field. Much of the question for judges then becomes what level of deference to apply and when. That's less true of history; there's no Federal History Agency taking a first stab at these questions. Yet again, the questions that arise with respect to biochemistry may have readily falsifiable answers that help to weed out clearly wrong opinions; the questions that arise in history may not.
Blackman is right that it's ultimately a question of methodology, certainly. But that also suggests a difference. Courts, or courts in concert with the administrative state, may seek ways to avoid having to decide difficult technical questions outside their expertise. But originalism, of whatever variety, is an approach to constitutional law that actively forces judges into a field in which they arguably lack expertise. It increases rather than decreases the epistemological problem. If you were looking for a judicial methodology of constitutional interpretation that avoided putting judges in a position for which they're ill-suited, presumably you would focus on what judges do well and often--crunching doctrine--rather than on an approach that requires them to do history. Originalists argue that they are required to do some form of history because that is what legitimate constitutional interpretation requires. Presumably, then, they would argue that whether they can do it well or not, it's what they're called upon to do just the same, and Article V will serve as a safety valve. Fair enough, if you accept the premise (I don't). But it's still an odd ex ante choice of method if what you care about is comparative institutional expertise.
A slightly different but related answer, and I think an accurate one, is to say that originalist judges aren't "doing history" in any sense in which actual historians would describe their own field. They're doing a legal activity that consists of deriving present meaning from text based on the original public understanding of language. They're doing so in a way that is constrained in various respects in terms of sources, goals, selection effects (the fact that judges are trying to answer a specific question about a contemporary legal issue, and so will be affected by presentist concerns, rather than at least taking on a broad question with less of an interested starting-point), and so on. The results of that method may be judged in various ways; of these, historical accuracy is one but hardly the only measure. Historians, and historians' briefs, may aid them in this endeavor, but not much and rarely definitively. (And do judges really listen to historians anyway?) What they do may be closer to etymology than history. I doubt they have much expertise here either. But it's at least valuable to have a more precise understanding of what they're doing, rather than use "history" as a catchall label or judge their efforts by the standards of a related but different field altogether.
The ultimate question is whether originalism is required of judges engaged in constitutional interpretation or not; I can't answer that question here. But if it is, it won't matter much whether they're good or bad at it, or whether they're any better or worse at that than at deciding cases involving biochemistry. Still, we recognize in all kinds of ways that judges are lousy at biochemistry and seek ways of avoiding the necessity of doing so, or of limiting their work in this area to questions and methods they're capable of dealing with. Originalism does the opposite: it requires judges to dive headlong into an area of inquiry--but don't call it "history!"--at which they're arguably not especially able. I doubt the comparison between history and biochemistry is entirely apt, for the reasons I've given; but if it is, I don't see why it should comfort us any.
Thursday, April 11, 2013
OMFG It's the Michigan Law Review Books Issue
The annual books issue of the Michigan Law Review is always one of my favorite law review issues of the year. (Yes, some of us still think in terms of law review "issues.") For one thing, I love books and am glad to see them get attention in the legal periodical literature--especially now that I've written a couple of the suckers. For another, too many law reviews, for totally understandable reasons that have to do with getting cite counts rather than actually serving the cause of legal scholarship, do too little book reviewing. Also, from a sheer reader's perspective, book reviews are often among the best-written things in law reviews, both because they can skip over the usual massive literature review section and (I am now coming to think) because the format tamps down on the need for ridiculously overextended "novelty" claims.
Anyway, this year's issue is now out and available online. It includes my review of Brian Tamanaha's Failing Law Schools and Walter Olson's Schools for Misrule, but it also has many good pieces. Enjoy!
Symposium on When the State SpeaksMy friends at Concurring Opinions are running an online symposium this week on Corey Brettschneider's book, When the State Speaks, What Should It Say?: How Democracies Can Protect Expression and Promote Equality. I'm participating and have a couple of posts up--one a set of general questions, and the other more focused on Brettschneider's discussion of religious liberty. By all means, surf on over and check out those posts and others, including Brettschneider's responses as he posts them.
Wednesday, April 03, 2013
The [tk] State of North Carolina
Here is a nice story about a House bill in North Carolina that declares that "the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion," and that the "North Carolina General Assembly does not recognize federal court rulings which prohibit and otherwise regulate the State of North Carolina, its public schools or any political subdivisions of the State from making laws respecting an establishment of religion." It has eleven sponsors so far, all Republicans.
Note that the bill does not appear to be making the "jurisdictional" argument that the Establishment Clause does not prohibit state establishments and has been wrongly interpreted to do so through incorporation. Rather, it appears to be based on some kind of bouillabaise of nullification, popular constitutionalism, something like federalism, and denial of the power of federal judicial review. It says:
The Constitution of the United States does not grant the federal government and does not grant the federal courts the power to determine what is or is not constitutional; therefore, by virtue of the Tenth Amendment to the Constitution of the United States, the power to determine constitutionality and the proper interpretation and proper application of the Constitution is reserved to the states and to the people. . . Each state in the union is sovereign and may independently determine how that state may make laws respecting an establishment of religion.
The bill does not say anything about whether its theory of interpretation and authority applies to any other federal constitutional provisions, such as the Speech Clause. It also does not actually require establishment, nor does it say which religion the state would establish if it went ahead and did so. Here's hoping it goes with Islam, in the spirit of using states as laboratories of experimentation.
Monday, April 01, 2013
Doing Good, Doing Well, and Not Waiting in Line
My next book project will be on social class and the American legal academy, so I was fascinated by Dale Carpenter's impassioned account of his experience lining up to watch the oral arguments in the same-sex marriage cases. According to his description, after waiting all night in the Supreme Court bar members' line--along with a host of paid, mostly poor, mostly black, line-sitters--he watched a variety of individuals "arrive in a fleet of eco-friendly Priuses, alternately sipping their mocha pepperaminto skim milk lattes and chatting excitedly about egalitarianism’s next frontier," and not only taking the spaces reserved by the line-sitters but also swelling their numbers with line-cutting friends.
There is not necessarily any hypocrisy in this, as such. Lots of well-credentialed liberals believe in a world in which all people, no matter their race, religion, gender, or sexual orientation, can amass as much wealth as possible, work every connection they have, and take full advantage, on their own behalf and especially on behalf of their children, of massive inequality of opportunity. It's just a lousy ethic, that's all. But Dale does a lovely job of describing it, and his post is well worth reading.
Thursday, March 14, 2013
A Good Day to Read Anthony Gill
Given Rick's post elsewhere, I feel a little nervous about saying I'm delighted, without reading too much into it, that the new Pope has taken the name Francis.
My work on law and religion, including religious institutionalism, has tended to take one or both of two approaches: an internal perspective that tries to appreciate the views and obligations of religious individuals and institutions from within, and a more external, institutional perspective in which things like history and economics provide a useful tool with which to analyze the behavior of religious institutions as institutional actors. (I have a forthcoming paper, still in progress, that applies that approach to the "freedom of the church" debate.) I tend to think both the internal and the external approaches are necessary and valuable, and that it is possible to take an external perspective without being impious or harsh.
Here, I just want to recommend a particular author--Anthony Gill--for those who might be interested in an externalist perspective on the selection of a Pope from Latin America. Gill is the author of two excellent books. The first, Rendering unto Caesar: The Catholic Church and the State in Latin America, uses an economic, historical, and rational-choice approach to analyze the varying relations between the Church and the state in Latin America, offering a theory about why resistance to the state became popular as a Church approach in some Latin American states and not in others. (The answer, in short: the degree and nature of competition from evangelical Protestantism in different Latin American states.) The second, The Political Origins of Religious Liberty, takes the same approach and applies it to a broader canvas; it has a chapter on Latin America.
Both are well worth reading--especially but not exclusively today. I'm sure there will be a lot of talk about this decision as reflecting the importance and growth of Catholicism in Latin America and in the southern hemisphere. What Gill adds to that picture is 1) the importance in those states of competition from other religious sects that have also made major inroads in those areas, and occasioned great concern in those places from once-dominant sects; and 2) how that fuller picture has affected church-state relations in different ways at different times, and the ways in which the dominant church has taken very different approaches to church-state/religious liberty questions in different places, even at the same time, rather than taking a universalist approach.
None of this, of course, is meant to offer any reading of tea leaves, or to deny the value of an internal as well as an external perspective. But I've found Gill's work useful and interesting and it may be of particular interest to others today.
Tuesday, March 12, 2013
I apologize for posting on this matter one more time. But one of the problems with these kinds of Internet teapost-tempests is that they get very ugly, everyone decides to put the matter behind them, and then everyone just repeats the same behavior the next time around. Sometimes it's both necessary and right to make a moral judgment about particular affairs before putting them behind you. So let me offer here, rather than on The Faculty Lounge, which tends to eat long comments, a response to Paul Campos, who has offered a kind of response to Dan Filler et al.'s statement from yesterday on his blog, and commendably has offered a link to it at The Faculty Lounge. I encourage those who are exhausted by this issue to skip the post. But some things demand to be judged, on the record.
Campos’s comment strikes me as totally pusillanimous. Consider everything he has been saying in the last week, and how he has said it. And note that it was all based on what he now calls “triangulation”—which is to say, inference and conjecture, which are notoriously subject to error (along with, he claims, other information that he is not revealing in order to maintain confidentiality, although as far as I can tell from today’s post he doesn’t think anyone else is entitled to be believed in such circumstances). In the course of a few days, he went from saying, “It appears the admins at The Faculty Lounge may have some explaining to do”; to saying that “the obvious suspect” for having passed along information was someone at TFL and “the obvious candidate from among the site’s bloggers is Dan Filler”; to a post on March 7 repeatedly singling out Filler as his prime suspect; to a post on March 8 saying that the conduct he was complaining of “was apparently made possible by his co-blogger Dan Filler sharing confidential email information from comments at Filler’s other blog, The Faculty Lounge”; to a statement in the same post, now fully accusatory and without qualification, saying, “let’s not forget the role of his errand boy Dan Filler in all this, who can’t even manage to get to denial, but is apparently too cowardly to confess to his role in this squalid business”; to a conclusion in the same post that Filler’s failure to issue a clear denial of responsibility removed “any” doubt for Campos that Filler was guilty. Note the hot and temperamental rhetoric; the mounting number of accusations against one person; and the increasing move from speculation to what he pronounces is utter certainty.
Following yesterday's statement here, Campos's post today, to which he links and which you can judge for yourself, is notably lacking in that kind of rhetoric. Instead, it adopts--in what, as far as I can tell from reading Campos's blog for more than a year, is a fairly typical rhetorical move whenever he is called into question--a sober-sided, more-in-sorrow-than-in-anger, let's-put-this-late-unpleasantness-behind-us tone. He describes himself as having, in his earlier posts, "determined that Leiter’s co-blogger Dan Filler was an obvious candidate for having given Leiter access to the critics’ email addresses, and in at least one case an IP address as well." Note the difference between that more circumspect description and his actual language in repeated posts, which ended in a pronouncement that he had no doubt that Filler, who was not his own man but someone's "errand boy," was the guilty party. His post today ends by suggesting that no other explanation is possible other than that someone at TFL blog acted improperly, although he has hardly demonstrated that; but he also now identifies a range of possibilities and culprits other than Professor Filler. Apparently his doubt is back. How nice to see it again.
Admittedly, I would never write accusatory posts like that in the first place, and certainly not a series of them, and certainly not a series that ends by announcing my utter confidence that I am right in accusing a particular individual--and all of this on the basis of "triangulation," no less. If I did, however, and the accused then issued a denial, I would consider myself honor-bound toreply in language that was just as loud and clear as my accusations. I suppose if I thought the person was lying, I might say so, and why I thought so. But if I now admitted that there were other possibilities, I would apologize straightfowardly, even if I was not sure I was wrong, both because I might be wrong and because my earlier statements had said I was certain I was right.. I wouldn’t suddenly move from repeated, hotly voiced accusations to cool, lawyerly, passive-verbed tones; that would strike me as just another way of being less than straightforward, if not outright dishonest and dishonorable. And I sure as hell wouldn’t talk soberly about wanting to put “this sad and disturbing matter” behind me until I had first done the right thing, in clear and unmistakeable language. Anything else would strike me as cheap and cowardly.
Lots of Campos’s fans like to accuse law professors of writing about subjects they know nothing about—and not without reason! In that sense, I find it telling that Campos is the author of an article titled “Shame.”
Saturday, March 09, 2013
On Anonymity, Professorial and Otherwise
A number of things about this latest online discussion of anonymity and its discontents strike me as somewhere between silly and disturbing. Actually, almost everything about it does, but one thing in particular is bothering me at the moment. It's the failure to actually discuss meaningfully the uses and abuses of anonymity. Without singling out anyone--and how could I, since most of the people talking about it online are doing so anonymously?--a comment on Howard's post below has set me off. The comment begins: "I would highly counsel anonymity in these posts. We are essentially mulling over legal ideas, and our speculations may or may not be correct given that we’re giving a first impression; the equivalent of going into each other’s office and talking it over rather than putting in the research, speaking to a client, and then providing a well-founded (ie. sufficient under FRCP Rule 11) advice." It is signed "anonprof." Of course, I have no idea whether the commenter is a professor at all, let alone a law professor. Assuming he or she is, however, I find it disturbing and worthy of comment, with all appropriate apologies to that individual.
The most common justification given for anonymity online, at least on the law blogs as of late, has been fear of professional repercussions for young lawyers who worry that they will be fired for speaking their mind. I can imagine cases, maybe even many cases, in which that is a valid concern. It does not, of course, say anything about how one speaks one's mind. I would have thought that a decent person who decides to speak anonymously would be more careful about what he or she says, and how he or she says it, because a decent person who refuses to put his or her good name behind a statement ought to think that circumspection is a reasonable price to pay for immunity. It's difficult to judge degrees of behavior, but obviously plenty of people who speak anonymously feel emboldened instead. Equally obviously, some people who speak anonymously behave like vulgar, uncivil asses. I assume some of them are just like that, and talk the same way even when they're using their own names. But surely some of them have decided that being anonymous frees them to be complete asses, and take full advantage of that fact. That is, I think, literally contemptible. If you can't manage to have manners, you should have a name; if you can't manage to have a name, you could at least have some manners. If you don't have either, you ought to get a life.
Leaving those people aside, surely not all of those who are civil (albeit forceful) but anonymous are justified in their anonymity by a genuine concern for disastrous consequences if they attach their name to what they write. Fear of consequences is a valid justification for anonymity, but it isn't always a valid concern. There's a difference between worrying about being fired for a careless statement, especially if one lacks resources, and worrying about slower advancement, fewer promotions, and so on. I don't think the latter concern is unworthy of anonymity, but it does suggest a certain lack of character--and all the more so if that person then uses anonymity in an especially uncivil way. This is strictly hypothetical, but if some fifth-year associate at a big law firm somewhere decided that the wise thing to do would be to remain anomymous so he or she could post "fuck off" somewhere online without worrying about losing a promotion, I wouldn't consider that an especially legitimate reason for anonymity. Could any serious person conclude otherwise?
With academics, including law professors, the reasons for anonymity, at least in one's own professional realm, are even more limited. They are, in fact, pretty close to non-existent. I could imagine a whistle-blowing scenario in which one writes about one's own colleagues for important reasons and wants to remain anonymous. I say imagine, because I can't think of any examples of anyone having actually done so. Most of the time, though, law professors who comment anonymously aren't doing anything like whistle-blowing. They're professing some view about the law. And that, of course, is their job. For tenured professors, there is no good reason to seek anonymity in order to profess about the law, legal education, or the legal academy. As far as I'm concerned, things are generally no different for untenured professors. For one thing, as I've written here before, if you can't muster up the courage to act like you deserve academic freedom before you get tenure, then it's not clear to me that you deserve it at all. For another, if you're not sure the view you're expressing is meritorious, you don't actually have to say anything at all! And if you are still moved to speak, nothing prevents you from putting your opinion in a careful and cabined way--which, as a conscientious academic, you should be doing anyway.
I hate to sound all "kids today" about it. But I started blogging some eight years ago, pre-tenure, well after many other law professors but still relatively early in the law-blogging period. Plenty of law professors back then thought about blogging and decided they didn't want to do so, either because they might suffer blowback at their own institution or in terms of lateral hiring, or because they didn't think they could spend the amount of time they'd require to feel good about having their own words attached to their own name online day after day, or both. I completely respect those decisions, and who's to say they weren't in fact much wiser? To the extent that some of us did choose to take advantage of the medium, no one was handing out any guarantees that there would be no consequences. But that's true of everything academics choose to write or not write, regardless of the medium. Absent extraordinary circumstances, I just don't think anonymity is a valid choice for law professors who want to say things about their own profession online, in comments or elsewhere. It certainly doesn't suggest even the minimal degree of courage that I think every academic, if not every lawyer--or even every person--in a First World country ought to possess.
Friday, March 08, 2013
Sarat Symposia--Past, Present, and Future
Today at the University of Alabama, we were pleased to have our friend Austin Sarat serving as host for a symposium titled "Civil Rights in the American Story." The lineup was terrific, and although I couldn't be there for every talk, the ones I saw were excellent.
Austin has hosted a variety of excellent symposia at Alabama and I've been delighted to participate in several of them. Here, by way of weekend reading, is an abstract for a paper I gave in response to Martin Redish at a symposium on speech and silence in American law. The paper is titled "Anonymity, Signaling, and Silence as Speech." In it, I argue, inter alia, that Internet anonymity takes a variety of forms, including genuine anonymity and consistent pseudonymity, and that rather than viewing it as a form of silence, anonymity can be understood "as an attributional decision that sends important signals about the reliability of the speech and the speaker." I would do some things differently if I were writing the paper today, but I still think the signaling point is worthwhile, and in any event I was just grateful to share a stage with Prof. Redish. I'm also very much looking forward to participating in a symposium Austin will be presenting at the Law School this fall on civility. It will be a great spur to think about those issues.
Friday, March 01, 2013
Weekend Reading: Defending (Religious) Institutionalism
I've posted a short piece on SSRN, titled "Defending (Religious) Institutionalism." You can find it here. It builds on issues I've discussed in First Amendment Institutions (which, may I say, makes a splendid World Kidney Day gift). The issues raised here turn out to be especially timely in light of recent litigation over the ministerial exception, the contraceptive mandate, and similar issues. I should note that this piece is a reply to Richard Schragger and Micah Schwartzman's important article, Against Religious Institutionalism, which is coming out later this year in the Virginia Law Review; my reply will also appear there.
The abstract follows. Emailed comments are most welcome.
This piece is a reply to Richard Schragger and Micah Schwartzman's forthcoming article, Against Religious Institutionalism. The issue of the institutional status and rights of religious entities is an important and hot topic, given recent cases like Hosanna-Tabor, pending controversies over the application of the contraceptive mandate, and a spate of recent scholarship arguing for church autonomy and/or the revival of the ancient concept of "freedom of the church." Schragger and Schwartzman raise a number of tough questions about institutionalism, both in general and as it applies to churches. This reply offers a partial but forceful defense of institutionalism, in the church context and elsewhere.
Schragger and Schwartzman make some excellent points in their important article. In particular, they ask difficult questions about whether group rights stand on their own or are purely derived from individual rights, and sound an appropriate, if overly stringent, note of caution about "sovereignty talk" with respect to religious institutions. Nevertheless, they have not made out a conclusive case against (religious) institutionalism. In this reply, I offer a description of the institutionalist approach I have advocated for churches and other entities in my recent book, First Amendment Institutions, and argue that many of Schragger and Schwartzman's critiques of religious institutionalism don't apply to it. Schragger and Schwartzman argue that religious institutionalism is unnecessary because general principles of conscience and associational rights will be sufficient to protect conscience-based associations, including churches. Because they remain noncommittal about the actual scope of conscience and associational rights, however, they have not yet shown that this is true. Finally, I argue that Schragger and Schwartzman do not give an adequate sense of why religious institutionalists, and group-oriented pluralists in general, find the institutional turn attractive: why these thinkers are convinced of the importance of non-state institutions and concerned about the "pulverizing, macadamizing tendency" of the state toward those institutions. Those concerns remain very much alive, and as long as they do pluralism and institutionalism ought to have a place in our thinking.
Thursday, February 28, 2013
The Law School Crisis Continues; ITLSS Does Not
Paul Campos has announced that "the time has come" for him "to move on" from his Inside the Law School Scam blog. I wanted to announce that: whether one liked his blog or not, it was a big voice on law school crisis issues, and ignoring its demise would seem to me the equivalent of trying to sweep it under the rug. I didn't intend to say much more than that. But perhaps a couple more words are necessary in light of rather harsh comments in a blog post by Brian Leiter and in the comments on a post on TaxProf.
Early on, I was a critic of various aspects of Campos's blog, although not of the existence of the blog itself or of the existence of a blog devoted to problems with law schools. Some of my early posts speculated about Campos's motives. I think that was a mistake; I've never met him, after all. My later position was simpler and I hope fairer; there was much I found distasteful about the blog, but I had promised to read it and I did, every post, and I occasionally linked to discussions I found useful or important, basically skipping questions of motives, style, etc. There were one or two exceptions along the way where I thought he had said something especially silly, but quite few. While it's fine to discount if one distrusts a source, one should take information about an important topic where one can find it, and appreciate it. I posted less from the blog as time went by, largely because ITLSS became highly repetitive--something I don't view as a big reason for criticism; it's tough to write that much that often on a single topic--and often provided more commentary (of variable quality) than facts, and also because the quality of dialogue one gets on these topics from commenters tends to be mixed.
But, if I was not the fan of the blog that others were, I think it still had definite value. Campos seems to me to be essentially a journalist moonlighting as a law professor, and perhaps without some of the professional norms I would expect from a full-time journalist. But he offered a fair amount of good journalism along the way: a lot of digging up and examination of data that I hadn't seen elsewhere and that, good or bad interpretations of it aside, provided a useful and often distressing basis for analysis. That's a genuine contribution, for which I'm grateful; certainly, although I have written about these issues for quite some time, I didn't do the digging he did.
The "style," although I mean more than just writing style, was another matter. Many of his fans loved his writing style. I found it repetitive (how many times do you need to use the same quote from Upton Sinclair before it gets old?), self-indulgent, evasive and squirrelly, preening, and finally tedious. His analysis of the useful data he provided was often correct, in my view. But he seemed rarely content to make a basic point that would have been sufficiently devastating in itself, if the opportunity presented itself to make a far more tendentious de-haut-en-bas observation about some "big truth" that everyone but himself lacked the courage and acuity to recognize. A vivid style is one element of good writing; but so is self-restraint. Campos was much stronger on the former than the latter. Now, your mileage may vary. Clearly many people loved his writing, although of course I think my criticisms of that writing are entirely on point.
But I do think there was a relationship between style and substance here. As I said above and am happy to repeat, in my view his best contributions were those posts that provided lots of data, and at various times there were many of those posts. The more untethered his posts were from the data, however, the weaker they were, the more questionable or inconsistent or hard to pin down in their fundamental arguments. Both before and after he dropped the anonymity pose, he traded on his ostensible authority as an "insider" in various ways, by suggesting that he was sharing an insider's knowledge, or that the fact of his own quite human and understandable complicity in the system gave what he had to say extra authenticity. In the final analysis, though, what he provided was public knowledge, not private knowledge--in short, journalism. He simultaneously danced up to and shied away from saying anything meaningful about his own situation, although he might have offered some interesting thoughts about that. In doing so, he would say that the real issue was the system, not any one person in it. But that is really a mixed message: an effort to trumpet one's authority and insider status without actually drawing on it or discussing it honestly. That's what I mean by trading on authority, and it was a constant in his work; it is certainly a glaring feature of his final post. (If that's a flaw, I should note, it's not his alone; I've said much the same thing about amicus briefs by law professors, and no doubt it's often true of law professors' blog posts.)
In short, there were plenty of reasons to find aspects of his blog objectionable, and his suggestion in his final post that everyone who objected to what he wrote did so either because they were angry at his intrepid truth-telling or because of personal animus seems to me badly exaggerated and self-serving. The latter seems especially silly because, judged by his writing, Campos certainly has no objection to responding to others in a personal rather than a substantive way and drawing broad conclusions about the motives of others. (None of this, however, excuses some of the absurd defenses of the present law school regime I have read elsewhere in the last few months, or some of the dismissals-by-ad-hominem of accurate points that Campos made along the way.) But it should be said that his blog was never really aimed at law professors as a readership. Nor was there any obligation for him to do that. It was aimed at (understandably) dismayed, dispirited, disgruntled law students and graduates, for the most part. The Internet being what it is, it would be foolish to draw any conclusions about how representative of broader views or intensity of emotion his readership was. But suffice it to say he did find and indulge a genuine readership with genuine concerns and anger. That's an important fact, I think.
Let me repeat something I argued very early in my engagement with both the Campos blog and the question of law school crisis and reform in general. The arguments that much needs to be fixed about law schools, in terms of numbers of students and schools, tuition and debt, curriculum, hiring, and so on, seems to me unassailable. The lousy and perhaps permanently changing legal economy adds a powerful element to that; one of the best Campos posts, in my view, was one about halfway through his run emphasizing just how central the lack of jobs is to the current crisis. But reform would still be necessary regardless of current conditions. I wrote early on that the danger of a "crisis" footing is that it may lead us to be even more complacent if the economy improves and fewer students are moved to complain about outcomes. But the changes needed in law schools are not just about responding to immediate stimuli; they're about doing the right thing, for students, clients, and simply for its own sake and because it ought to be part of one's ongoing academic duty. That Campos's blog is ending doesn't mean the issues aren't ongoing. Even if its discontinuation ends up turning down the temperature a little, which I'm not sure it will, that does not change the obligation to deal with these issues. And, again, for all of what I found its evident flaws, I would say his blog, at its best, contributed importantly to the discussion along the way.
Sunday, February 24, 2013
If the Shoe Fits...
I am generally no fan of accusation by easy labeling, which is often misleading or inaccurate, rarely helpful or informative, and generally not conducive to clear thought. My pet example is Project Censored, whose annual top ten list of "censored" stories rarely involves actual censorship. Whatever merit there is in the claim that these stories deserved more coverage than they got is, for me, swallowed up by the cheap, attention-seeking misuse of the charged word "censorship."
All this is by way of talking about Senator Ted Cruz, who has been accused for the past week of engaging in McCarthyism, merely because he engaged in half-baked accusations and cheap insinuations. In the past couple of days, the New Yorker has dug up another example: in this case, a 2010 speech in which Cruz
"went on to assert that Obama, who attended Harvard Law School four years ahead of him, 'would have made a perfect president of Harvard Law School.' The reason, said Cruz, was that, 'There were fewer declared Republicans in the faculty when we were there than Communists! There was one Republican. But there were twelve who would say they were Marxists who believed in the Communists overthrowing the United States government.'"
This was a laughable assertion, but people say silly things all the time. So I am duly impressed that a spokesperson for Cruz has doubled down, saying to The Blaze in response to the New Yorker story:
“'It’s curious that the New Yorker would dredge up a three-year-old speech and call it "news,"'. . . . Regardless, Senator Cruz’s substantive point was absolutely correct: in the mid-1990s, the Harvard Law School faculty included numerous self-described proponents of ‘critical legal studies’ — a school of thought explicitly derived from Marxism – and they far outnumbered Republicans.”
I am impressed by this response on any number of levels, not least for constituting a dredger complaining about the dredging activities of others. Mostly, though, I am impressed by the claim that Cruz's earlier suggestion that a dozen HLS faculty members believed in the Communist overthrow of the United States government is "substantively correct" because the faculty included a number of adherents of critical legal studies--the most prominent among them being former CIA employee Duncan Kennedy.
I hope it's not too Tushnetian to say so, but I worry about a United States Senator, bright, well-educated, and often treated as the great non-white hope of the Republican Party, who can't tell his Reds from his red-diaper babies. I doubt that Cruz cares much whether he's accused of McCarthyism. If he does, though, he could probably avoid it more often in the future if he acts less like, well, McCarthy.
Read more: http://www.newyorker.com/online/blogs/comment/2013/02/ted-cruz-sees-red-not-crimson-at-harvard.html#ixzz2Lmyx8rcW
Sunday, February 17, 2013
Disconnects in the Law Review "Affirmative Action" Discussion
All the notional ink spilled in the past week on the question of whether law reviews ought to self-consciously select articles with a thumb on the scales of particular identity traits has certainly been interesting. The discussions have been interesting, and so has the amount of energy spent on it. I have little to add on the main subject, largely because I am still undecided about precisely how small the stakes are.
But I would like to make one observation. It seems to me that, in a sense, the arguments in favor of allowing law reviews to engage in this kind of activity actually end up with two very different implications, and not especially welcome ones for those making these arguments. On one reading, those arguments end up suggesting that there are good reasons why public law schools' law reviews cannot legally do so. On another, perhaps more puckish reading, the arguments in favor of "affirmative action" by law reviews amount to arguments against the constitutionality of affirmative action altogether, at least under current doctrine. Of course some generalizations follow. I think they're supportable ones, but they're not meant as definitive, so much as they're meant to make us ask what this smaller debate says about the larger issue.
Several things strike me as common features in contemporary arguments for the constitutionality of race-conscious admissions in the university context. 1) Largely because the Supreme Court requires it, it is routinely argued that such admissions programs involve a careful, holistic, nuanced, all-things-considered consideration that takes full account of the merits of each applicant and takes more than just race into account for diversity purposes. 2) For a variety of reasons, offices of affirmative action, diversity management, etc., both inside and outside of universities, routinely argue that their job is a complex one that requires a good deal of expertise and experience. 3) For both reasons, as well as for reasons relating to academic freedom, defenders of race-conscious university admissions argue that both the need for and the execution of such programs requires expert judgments of the kind that courts are ill-suited to make, and that courts therefore ought to afford universities substantial deference in this area.
Now contrast that with some of the arguments in the past week suggesting that law reviews, presumably including public university law reviews, are entitled to and perhaps ought to engage in article selection in part based on particular identity traits of the authors, including race. The arguments have been interesting and sometimes persuasive. But they still involve a brute bottom-line conclusion: that sorting according to identity trait (including race) can be undertaken by a bunch of 24-year-olds, who have at most a year's experience as journal editors and who, most people seem to agree, are not even qualified to judge the merits, such as they are, of the articles they are reading.
To the extent that it is true that journal editors are young and inexperienced--not to mention busy with a full load of coursework--I find it hard to imagine that anything they do would fall within the kinds of parameters that have led courts to defer to and permit race-conscious actions by other sectors of public universities. (Of course, it may be that the law reviews' actions fall outside the legal scope of any 14th Amendment prohibitions, if only because the law should not concern itself with trifles and law reviews are just that.)
Understandably, I haven't seen any suggestion, from defenders of law review editors engaging in this kind of authorial sorting, that those editors are simply unqualified to engage in what everyone has been calling "affirmative action." They seem to assume they are competent to do so. That leads me to my second, somewhat more provocative question. To the extent that they, or anyone else, think that law review editors are qualified to do so, and draw on broader arguments about race-conscious university admissions in talking about what law reviews might be doing or ought to do, shouldn't that lead us to doubt all the claims concerning complexity, expertise, holistic consideration, and so on that are made on behalf of public universities? Shouldn't it lead us to wonder whether any deference at all is warranted on the part of courts toward those universities? And if universities didn't receive that kind of deference, isn't it much more likely that race-conscious policies by universities would be struck down altogether? In short, if, for God knows what reason, the Supreme Court justices are sitting in Washington, taking a break from working on their opinions in the Fisher case to read the blog arguments in favor of affirmative action in law review article selection, shouldn't they conclude that Grutter v. Bollinger ought to be overruled?
Just a thought.
Friday, February 15, 2013
Blocher on "First Amendment Institutions"The New England Law Review has a review of my recent book, First Amendment Institutions (available for Kindle readers! Makes a lovely Purim gift!), written by Duke's Joseph Blocher. Joe has some very generous things to say about the book and, more important, some good tough but sympathetic questions and criticisms concerning the institutional First Amendment project. It's an excellent read.
Thursday, February 14, 2013
LaPierre on Mad Max's America
This column by the NRA's Wayne LaPierre is well worth reading, even though it appears in the Daily Caller, for at least two reasons:
1) Proof, just in case it was needed, that the paranoid style is alive and well in American politics, and of the continuing deterioration of rhetoric on the Internet.
2) The total absence of mention of the NRA's post-Newtown proposal that Congress "act immediately, to appropriate whatever is necessary to put armed police officers in every school — and to do it now, to make sure that blanket of safety is in place when our children return to school in January." At the time, LaPierre described that proposal as urgent and necessary. Today, it doesn't even make the list of priorities, the first two of which are litigating and making sure the NRA receives more money. Incidentally, I wrote a while back that "[i]f the organization does not actually make a concerted and resource-heavy effort to see legislation proposed, advocated, and scored, then, at that point, I think it would be more than fair for even his supporters to conclude not only that the whole thing was political theater, but that--for professional purposes!--LaPierre does not really care all that much about the safety, well-being, or death of children."
Wednesday, February 06, 2013
Conversation on First Amendment InstitutionsI am extremely grateful to Marc DeGirolami, who conducted both a print and a telephone conversation with me about my new book, First Amendment Institutions, which incidentally makes a great Doppelganger Week gift. Marc has posted our print conversation at the Center for Law and Religion Forum; a podcast of our phone conversation should be available soon through the Federalist Society, which is initiating a series of podcasts on new books. Marc's own book, The Tragedy of Religious Freedom, will be out later this spring.
Tuesday, January 22, 2013
On Hatred--and Radical Love
I haven't been blogging much lately, for the usual reasons--ie., despair at the whole enterprise, with a smidgeon of being too busy with other things. (Happily, we've got you covered here with our series on Erie.) But I am moved to write by a post by Eugene Volokh yesterday (Martin Luther King Day, not incidentally) in which he writes to
state for the record that I think it’s eminently fitting for us — and for anyone else — to feel and express hatred for those who are evil, and in particular to think that they eminently merited death and indeed would have merited an earlier one. Hatred is the normal and proper reaction to those who murder, those who enslave, and the like, both on Martin Luther King Day and on other days.
You can read my comments on that post for the reasons why I found the post distressing, a feeling that has not abated with the passage of a day. So I thought, by way of antidote, that I'd post a link to a moving piece I read yesterday, a review in The New Yorker of a couple of recent biographies of Francis of Assisi. He does not provide an easy model for any of us to emulate, and most of us (of whatever faith) don't, really. But I can't help but find his example a more inspiring one. Enjoy.
Tuesday, January 01, 2013
What Does Robert George Want, Exactly?
I reprint, with comment, this post from Robert George:
So now, it seems, we have rather a good test for the elite media. We know how reporters and commentators would be reacting to this story if the people arrested were (or were thought to be) tea party activists, do we not?
So how will they react now?
I predict that the story will be covered by Fox News and some conservative journalists (the link I provided is to the report in the conservative-leaning New York Post) and largely ignored by most of the mainstream media--print, broadcast, and on-line. I hope I'm wrong about that. In any event, the folks at the New York Times, NBC, CNN, etc. will certainly not use the story to blacken Occupy Wall Street or the political left. They will not do what they almost certainly would be doing if the persons arrested had been tea party people. Of course, we've all more or less gotten used to this double standard; at this point even most conservatives have resigned themselves to it. But that doesn't mean it's not a problem. The common good of a democratic polity does not require a pristinely unbiased media, but it requires far more evenhandedness than ours gives us. Especially in circumstances of pluralism such as ours, groupthink in the media is not a good thing. It is even worse than groupthink in academia, though that too is bad--for everyone.
A couple of comments.First, I'm not clear on whether George includes Fox News or the New York Post under the rubric of "elite media" or not. Obviously, one or both belong there (and, also obviously, both are terrible news organizations), but his post is a little ambiguous on this point.
Second, it would surely be helpful if George were a little more upfront about what he wants. Is it equality, or quality? Does he think stories of either kind should be played up for all they're worth, or that stories of both kinds should be covered to the extent and with the care they deserve? I assume he thinks the Times would be wrong not to cover such a story (but it did cover it), but I can't tell whether he thinks the Post played it fairly or not. I gather, although I'm not sure, that he thinks that the "elite media" have used other stories to blacken the "political right" unfairly; so does he think the Post's story unfairly blackens the political left, or that it gets it just right (and thus, presumably, that some of those other stories blackening the political right also got it right), or what?
Finally, I do think George has a point, of course. But he also demonstrates the capacity of stereotyped, lazy thinking and reading to weaken an otherwise presumably able mind. The plural of anecdote is not data, of course. I have read stories along the way about the Tea Party in elite media sources (I don't pay attention to television news of any sort, as a rule) that have, in my view, unfairly tarred it by association with its most extreme members. Those stories were most common, unsurprisingly, when the Tea Party was in its earlier, less organized or co-opted stages and the story was new; that's generally when the media makes the most mistakes. Those stories hardly constitute the common run of stories about the Tea Party in the elite media, many of which may be critical of the "group" but also take it entirely seriously as a large political movement--more seriously, certainly, than they do Occupy Wall Street (and with good reason).
I do find it necessary, in reading the "elite media," to separate the wheat from the chaff; it's also fairly clear to me that its work consists more of wheat than chaff. I'm not sure that is true of the work of the Post or Fox News. I'm sorry that George has resigned himself to any double standards in the elite news media at all; he shouldn't. But it's also clear to me that if these stereotypes are all he is getting from his reading of those media (if he reads them), then he is operating under a heavy dose of groupthink himself.
Happy New Year
On a cheerier note, happy new year to all our readers. Speaking only for myself, I must say that the regular posters here are blessed by our guests, who have written some great material and made the intermittent nature of our own posts less glaring. I am also grateful for our commenters. We sometimes joke about, and sometimes take criticism for, our efforts to maintain a balance between allowing and encouraging anonymous commentary and criticism and trying to avoid descending too much into the mire. I doubt we always strike that balance right, although we try. There are some deleted comments that I wish had stayed up, and vice versa. But I am generally extremely pleased by the conversations here.
In any event, any year that will see both the induction of Rush into the Rock and Roll Hall of Fame and Alabama's victory over the fine folks at Notre Dame can't be all bad. I hope yours is a good one.
Hillary Clinton Suffers From Blood Clot Near Brain
One update is here. What can one say, except...
P.S.: Now that I think about it, if one were a decent human being and not unduly plagued by paranoia, "Get well soon" might work.
Thursday, December 27, 2012
NRA Scoring: Not "Pernicious" But Still Important (and Revealing)
Orin links this morning to the same story that caught my eye today: Linda Greenhouse's opinion piece on what she calls the NRA's "increasingly pernicious role in judicial confirmations." Greenhouse writes that the NRA has become increasingly willing to "score" votes on particular judicial nominees, both for the Supreme Court and for lower federal court slots, and even where there is little strong evidence of that nominee's views on gun rights. Because of the NRA's political and financial clout, its vote scoring can make a significant difference in individual senators' positions on such nominees. Greenhouse writes that these positions can only be explained as a part of the NRA's "maintenance of its symbiotic relationship with the Republican Party." She calls it "totally unacceptable for the N.R.A. . . to be calling the tune on judicial nominations for an entire political party." Orin writes, contra Greenhouse, that there is no principled difference between what the NRA has done in this situation and other efforts by advocacy groups across the political spectrum to influence legislative decisions.
I agree. I won't rehash Orin's points, but I'll add a couple. First, Greenhouse describes the NRA's clout and its power to influence senators through scored votes as purely a matter of Republican politics. Clearly the NRA's relationship to the GOP is stronger than its relationship to the Democratic Party, but in doing so glosses over the fact that, for political reasons, the Democratic Party as a whole has run away from gun control for the last decade or so, and championed the rise of many pro-gun or anti-gun-control Democratic politicians. Second, Greenhouse writes that "[t]here was, in fact, no plausible reason for any senator to vote against" Sonia Sotomayor. That's a silly statement, one that depends on an incredibly loaded interpretation of advice and consent; of course it was plausible to imagine that Sotomayor would be a "liberal" justice, in various meanings of that word, and reasonable (on some meanings of that word) to vote against her on that basis, just as it would have been reasonable to vote against the eminently qualified John Roberts on the opposite basis. For similar reasons, it's not accurate for Greenhouse to write that NRA opposition to liberal judicial nominees is somehow incoherent unless it's based on undefined substantive reasons. What it is, for better or worse, is a plausible prediction of future performance, and it's the same prediction that other advocacy groups make in opposing conservative judicial nominees.
That said, I think one could say more than Orin does in his post. Without assuming that the NRA's political clout, relative to most other interest groups, is unearned or illegitimate, it is still substantial (although hardly invincible, as Richard Mourdock could tell you). So when the group extends its ambit, surely that is worth noting and reflecting upon, particularly when that ambit extends past gun-specific issues to include carveouts intended to preserve its own political power (a carveout, incidentally, to which congressional Democrats agreed, contrary to Greenhouse's all-Republican narrative). And when it does so apparently as much to secure a tradeoff with particular political leaders as for reasons related to the group's mission, that's worth noting too: Greenhouse reports that one reason the NRA scored the vote on Sotomayor was because it was asked to by Senator McConnell, in order to keep the Senate Republican caucus in line on the vote. I agree with Orin that that's just how politics goes, but that doesn't preclude our noting and being concerned by it.
Finally, the political power of the NRA's scoring mechanism is worth noting because, as I noted in my earlier post, the group made clear last week that it thinks it is urgently necessary, in order to save the lives of innocent children, to push a legislative effort to put armed guards in every school in the United States before those schools reopen in January. Orin writes: "I realize that the NRA is in the news for its proposals for responding to the Sandy Hook shooting—proposals that I find, um, unhelpful. But I want to focus this post on the proper role of groups in influencing the judicial confirmation process." That's his prerogative, and it's a delight to see someone on his blog mentioning the NRA proposal at all. But, as I wrote earlier, a key indicator of whether the NRA was at all sincere in its statement will be whether the lobby is able to get one of its many congressional allies to put a bill on the floor in that timeframe, and an even better indicator of sincerity will be whether it treats this as a scored vote.
Opponents of the NRA already think the group doesn't care about the deaths of children and are unlikely to be persuaded otherwise. That's not a view I share, particularly given its gun safety programs, which could be viewed as self-serving but don't have to be. But if the group doesn't get a bill on the floor and doesn't score any vote on that bill, particularly having scored things like the Sotomayor vote, then I think even its allies--who have mostly been silent in recent days--would be entitled, if not obliged, to conclude that the NRA doesn't care about dead children anywhere near as much as it says it does. Surely that would be worth more than shrugging and saying, "Forget it, Jake; it's Chinatown."
Sunday, December 23, 2012
An Interesting Supportive Conservative Take on the LaPierre Statement...
That title may be a bit misleading. Actually, what I find interesting is that an interesting, supportive take on the LaPierre statement has been difficult to find. As I said in my last post, I already know what my liberal/pro-gun-control friends thought about the statement, and found it mostly uninteresting (and somewhat unpersuasive). But I had hoped to get out of my own epistemic bubble to find an upside take on LaPierre's statement from my usual go-to sites for those towing a more pro-gun, anti-gun-regulation, or conservative take on these and other issues. I suppose my own views on the issue are clear, but it's nice to look for challenges to those views.
But the usual sites I go to have either been silent or strategic (or both) in their reactions. The VC is the first place I go to for such things. Eugene Volokh had a post yesterday on a press release by Senator Feinstein proposing an assault weapons ban, but that post didn't mention the LaPierre statement. David Kopel, who can generally be relied on to be vocal on such issues on the VC, oddly hasn't put anything up on that site since December 11. The Corner, the National Review blog, had one more or less substantive post on the proposal, one purely descriptive piece, and a couple of posts detailing news show appearances by LaPierre or David Keene (but without discussing Friday's proposal). But mostly, it focused on criticizing reactions to the NRA's statement. (By comparison, it's had four posts on Chuck Hagel in the last three days.) For my sins, and so you, dear readers, wouldn't have to, I visited Instapundit. I don't expect substance from that site, but was still surprised by what I found, which basically was the same "the enemy of my friend is my enemy" approach that the NRO took, criticizing reactions to the statement rather than addressing the statement itself--i.e., "Well, he had journalists seething, which is probably a good sign."
I should add two points, but also two counterpoints. 1) Although this was the only major statement or proposal since Newtown by the leading pro-gun interest group, and one might expect to find something meaningful about it on these sites, it is of course possible that substantive commentators might be more interested in serious ideas than in evaluating every picayune press release or statement that comes down the pike. On the other hand, one would think that if Eugene had time to write about a press release from Senator Feinstein's office, he might have something to say about this. 2) People have lives, of course--even bloggers. They don't have always have time to write about everything. On the other hand, Kopel has published two op-eds and one NYT Room for Debate piece, and done six media appearances, since Newtown, but has written not one word on the VC since the 11th, let alone anything on what the NRA described as an urgent and necessary proposal to address mass murders of children in schools.
I think this is fair evidence that the usual suspects either found LaPierre and the NRA's proposal beneath discussion, or thought it politic, for some reason, to simply not mention it. I'm sure there are more charitable conclusions that could be drawn, or that one could draw no conclusions at all. I still found it downright bizarre, though, and frankly disappointing. I did not search very far outside my usual sources, to be sure, and perhaps there were good defenses of the proposal out there. But I didn't see them where I would expect to see them. My own view, as I said in my earlier post, is not that the proposal was horrifying or morally monstrous as such; just that, unless the NRA actually devotes resources to getting a bill on the floor and scores that vote, then we can quite fairly treat it as cynical political theater.
On a marginally cheerier note, check out the very interesting discussions of the gun/gun-control issue from a Catholic point of view, including a couple post-LaPierre statement, at Mirror of Justice--especially, with all due respect to the other posters there, the posts from Rob Vischer and Patrick Brennan. The comments to those posts offer some slightly interesting natural law perspectives, although what is startlingly absent from those comments is even the slightest hint of the imitation of Christ or the emulation of the saints. (When a commenter there writes about the possibility of a Katrina-like disaster, "Unfortunately, in cases like this, you may have little choice but to either fire a weapon against someone...or be killed for your food," I wonder whether he even considered the option of simply giving away his food to those who hunger--which is, you know, what Christ would have done.) I particularly admired the posts by Prof. Brennan, who is what outsiders would call a conservative Catholic (although I think he would reject that term), but who offers a powerful reminder, on the eve of Christmas, that committed Christianity may call for a radical peace that demands much more than hobbyists, or lovers of the bourgeois American lifestyle, may find comfortable.
Saturday, December 22, 2012
The NRA Proposal Judged From an Internal Point of View
It's unsurprising that the gun control/response to Newtown debate has not remained terribly focused or productive for very long. This isn't my field, and I've been occupied with other things anyway, so I haven't written on it this week. But I did want to add two observations. Both of them are admittedly consistent with my biases on the issue, but both are also aimed at trying to say something that could and perhaps ought to be said by those who don't share those biases.
The first has to do with the NRA statement to the press yesterday. (More a statement than a "press conference," since the organization imposed a three-day waiting period before answering any questions.) Here is Wayne LaPierre's statement in full. Unsurprisingly, gun-control advocates did not care for the statement. For present purposes I won't take a position on it. But if one takes something like the NRA's point of view, a question worth asking is whether the statement was essentially political theater or whether it had any shred of sincerity to it. Admittedly, I think it was theater. But how might one evaluate it from an internal point of view?
Two factors seem relevant. First, the statement does not amount to saying, putting more armed guards in school is the best we can do, or that it is acceptable legislation, or a reasonable starting point for discussion. It says doing so is utterly, immediately necessary. "[W]e must speak ... for the safety of our nation's children," LaPierre said. "[W]when it comes to the most beloved, innocent and vulnerable members of the American family — our children — we as a society leave them utterly defenseless, and the monsters and predators of this world know it and exploit it. That must change now!" Here was his specific call for action:
I call on Congress today to act immediately, to appropriate whatever is necessary to put armed police officers in every school — and to do it now, to make sure that blanket of safety is in place when our children return to school in January.
Before Congress reconvenes, before we engage in any lengthy debate over legislation, regulation or anything else, as soon as our kids return to school after the holiday break, we need to have every single school in America immediately deploy a protection program proven to work — and by that I mean armed security.
And he concluded: "This is the time, this is the day for decisive action. We can't wait for the next unspeakable crime to happen before we act. We can't lose precious time debating legislation that won't work. We mustn't allow politics or personal prejudice to divide us. We must act now."
The second factor is this: If that's what the NRA thinks is immediately necessary to resolve a pressing issue of public safety, it has plenty of resources and influence to devote to the task. It spent some $19 million in the last election cycle. Its lobbying power is evident. It is willing to spend to defeat incumbent Republicans as well as Democrats. It devoted ample resources to the primary defeat of Senator Richard Lugar, who enjoyed a one-time A rating from the group and almost has an NRA-worthy last name. And one key aspect of its power is its determination which congressional votes to "score" in coming up with its ratings.
So, in judging the good faith of yesterday's proposal, which again was described not as a compromise or possible idea but as urgent and mandatory, look to three things. First, will it actually expend any resources on it? Yesterday's statement said that former congressman Asa Hutchinson would "lead [our] effort as National Director of the National School Shield Program, with a budget provided by the NRA of whatever scope the task requires." The NRA has the money, and can raise more. How much will it spend? Second, how long will it take for it to get a bill into the hopper? It ought not take terribly long. Third and by far the most important, will the NRA treat any vote on this issue as a scored vote, regardless of any reasons, such as fiscal conservatism, that individual members might have for voting against it? If it can't get a bill on the floor, or doesn't score that vote, then I think it would be quite fair to say it never really gave a damn about what it described as an urgent and necessary proposal.
Again, I appreciate that those who oppose the NRA in general, or found yesterday's statement insufficient or horrifying, already think the proposal was political theater. For present purposes, I'm not interested in that; I'm interested in how those who either support the NRA in general, or think the proposal was a good or at least reasonable idea, and in any event who think the NRA is sincere in its statements, should evaluate the proposal--which, obviously, they should.
It's not all that hard for those who already hate LaPierre to continue hating him. But for those who think highly of him, and/or of the organization, I think it's fair to say this: LaPierre made clear that his proposal, in his view, was urgent, important, and necessary to protect "the most beloved, innocent and vulnerable members of the American family — our children." If the organization does not actually make a concerted and resource-heavy effort to see legislation proposed, advocated, and scored, then, at that point, I think it would be more than fair for even his supporters to conclude not only that the whole thing was political theater, but that--for professional purposes!--LaPierre does not really care all that much about the safety, well-being, or death of children. His adversaries, of course, already think that, but I'm more interested in how his supporters should judge him.
Friday, December 21, 2012
Introduction to a Discussion: Koppelman on "Defending American Religious Neutrality"
Here's another piece of weekend reading. As Rick noted on this page a while back, our friend and colleague Andrew Koppelman has just published an excellent book on law and religion, Defending American Religious Neutrality. (Note that the Amazon page offers an excellent deal when you buy it with another particular book.) Here's what Steve Smith of San Diego has to say about it: "Neutrality has been the central but embattled ideal in the modern jurisprudence of religious freedom. Andrew Koppelman offers the most serious and sophisticated defense of that ideal now available. For anyone interested in these important debates, this book is not recommended reading: it is required." That seems right to me. It offers a wide-ranging and sophisticated explanation and defense of the role of neutrality in the American law of religious liberty, and even those of us who do not share all his views (and I think Andy has convinced me that he and I actually have a good deal of common ground) will find it a book to be reckoned with.
Andy has kindly offered an introduction to his book below and, God (or not God) willing and the creek don't rise, Rick and I should be posting some responses to the book in the next week or two, hopefully with some replies by Andy. We're grateful to have him. His post begins below and continues after the fold.
* * *
The American law of freedom of religion is in trouble, because growing numbers of critics, including a near-majority of the Supreme Court, are ready to cast aside the ideal of religious neutrality. My new book, Defending American Religious Neutrality (Harvard, 2013), defends the claim, which unfortunately has become an audacious one, that American religious neutrality is coherent and attractive.
Two factions dominate contemporary discussion of these issues in American law. One, whom I’ll call the radical secularists, tend to regard the law of the religion clauses as a flawed attempt to achieve neutrality across all controversial conceptions of the good – flawed because it is satisfied with something less than the complete eradication of religion from public life. The other, whom I’ll call the religious traditionalists, think that any claim of neutrality is a fraud, and that law necessarily involves some substantive commitments. They claim that there is thus nothing wrong with frank state endorsement of religious propositions: if the state is inevitably going to take sides, why not this one? One side regards religion as toxic and valueless; the other is untroubled by the state’s embrace of an official religion. Neither sees much value in the way American law actually functions.
Yet America has been unusually successful in dealing with religious diversity. The civil peace that the United States has almost effortlessly achieved has been beyond the capacities of many other generally well-functioning democracies, such as France and Germany. Even if the American law of religious liberty were entirely incoherent, it might still be an attractive approach to this perennial human problem. There is, however, a deep logic to the law that its critics have not understood.
Prominent scholars of religion have ridiculed President-elect Dwight Eisenhower’s 1952 declaration: “Our form of government has no sense unless it is founded in a deeply felt religious faith, and I don’t care what it is.” Eisenhower nonetheless revealed a deep insight into the character of American neutrality. This book aims to recover that insight.
Contrary to the radical secularists, First Amendment doctrine treats religion as a good thing. It insists, however – and here it parts company with the religious traditionalists - that religion’s goodness be understood at a high enough level of abstraction that the state takes no position on any live religious dispute. It holds that religion’s value is best honored by prohibiting the state from trying to answer religious questions.
American religious neutrality has over time become more vague as America has become more religiously diverse, so that today (with the exception of a few grandfathered practices) the state may not even affirm the existence of God. This kind of neutrality is not the kind of neutrality toward all conceptions of the good that many liberal political theorists have advocated, but it is the best response to the enormous variety of religious views in modern America. It is faithful to the belief, held by the leading framers of the First Amendment, that religion can be corrupted by state support.
Defending American Religious Neutrality offers new answers to three questions: What conception of neutrality is relied on in the interpretation of the Establishment Clause of the First Amendment? Is it coherent? Is it defensible?
The First Amendment of the United States Constitution says “Congress shall make no law respecting an establishment of religion, or abridging the free exercise thereof.” The interpretation of this provision has been controversial for a long time, and indeed may be ripe for revolution. A growing number of writers, including several Supreme Court Justices, have argued that religion clause doctrine is both incoherent and substantively unattractive. They propose to replace it with a new set of rules that are far friendlier to official endorsement of religion.
If these proposals are adopted, the result would be heightened civil strife, corruption of religion, and oppression of religious minorities. One proposal, for example, is to permit states to endorse general principles of Abrahamic monotheism. Official religious pronouncements not only brand as outsiders anyone whose beliefs do not conform to the official line; they tend to produce religion of a peculiarly degraded sort. If the state gets to discern God’s will, we will be told that God wants the reelection of the incumbent administration. Another proposal is that religious activities should be eligible for direct funding so long as there is a plausible secular reason for doing so. Such funding for religious entities, particularly when those entities are relied on to provide public services such as education, aid to the homeless, prison rehabilitation, or drug treatment, can easily lead to a situation where the only option is a religious one, and people are bullied into religious activities. The most radical proposal would discard the requirement that every law have a secular purpose. Some religious justification is available for nearly anything that the state wants to do to anyone. Permitting such justifications would devastate many constitutional protections that have nothing to do with religion.
And this exorbitant price will have been paid for nothing. Present doctrine already allows for what the doctrine’s critics most value: state recognition of the distinctive value of religion. The law treats religion as something special in a broad range of legislative and judicial actions. What the state may not do—what the doctrine properly forbids it to do—is declare any particular religious doctrine to be the true one, or enact laws that clearly imply such a declaration of religious truth.
There is, indisputably, a deep coherence problem in First Amendment law. The Court has interpreted the First Amendment to mean that “[n]either a state nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another.” But the Court has also acknowledged that “the Free Exercise Clause, . . . by its terms, gives special protection to the exercise of religion.”
Accommodation of religion as such is permissible. Quakers’ and Mennonites’ objections to participation in war have been accommodated since Colonial times. Other such claims are legion. Persons whose religions place special value on the ritual consumption of peyote or marijuana (or wine, during Prohibition) seek exemption from drug laws. Landlords who have religious objections to renting to unmarried or homosexual couples want to be excused from antidiscrimination laws. Churches seeking to expand sometimes want exemption from zoning or landmark laws. The Catholic church wants to discriminate against women when ordaining priests. Jewish and Muslim prisoners ask for Kosher or halal food. These scruples have often been deferred to, and religious objectors have frequently been exempted from obligations that the law imposes on all others.
There is considerable dispute about whether the decision when to accommodate ought to be one for legislatures or courts, but that debate rests on the assumption, common to both sides, that someone should make such accommodations.The sentiment in favor of such accommodations is nearly unanimous in the United States. When Congress enacted the Religious Freedom Restoration Act (RFRA), which attempted to require states to grant such exemptions, the bill passed unanimously in the House and drew only three opposing votes in the Senate. After the Supreme Court struck down the Act as exceeding Congress’s powers, many states passed their own laws to the same effect. Many of those opposed to judicially administered accommodations, such as Supreme Court Justice Antonin Scalia, think that it is appropriate for such accommodations to be crafted by legislatures.
Each of these measures raises the same dilemma. If government must be neutral toward religion, then how can this kind of special treatment be permissible?
It is not logically possible for the government both to be neutral between religion and nonreligion and to give religion special protection. Some justices and many commentators have therefore regarded the First Amendment as in tension with itself. Call this the free exercise/establishment dilemma.
This apparent tension can be resolved in the following way. Begin with an axiom: The Establishment Clause forbids the state from declaring religious truth. A number of considerations support this requirement that the government keep its hands off religious doctrine. One reason why it is so forbidden is because the state is incompetent to determine the nature of this truth. Another, a bitter lesson of the history that produced the Establishment Clause, is that the use of state power to resolve religious controversies is terribly divisive and does not really resolve anything. State involvement in religious matters has tended to oppress religious minorities. Finally, there is a consideration that is now frequently overlooked, but which powerfully influenced both the framers and the Justices who shaped modern Establishment Clause doctrine: the idea that establishment tends to corrupt religion.
These considerations mandate a kind of neutrality. The state may not favor one religion over another. It also may not take a position on contested theological propositions.
It is, however, possible, without declaring religious truth, for the state to favor religion at a very abstract level. The key to understanding the coherence of First Amendment religion doctrine is to grasp the specific, vaguely delimited level of abstraction at which “religion” is understood.
What in fact unites such disparate worldviews as Christianity, Buddhism, and Hinduism is a well-established and well-understood semantic practice of using the term “religion” to signify them and relevantly analogous beliefs and practices. Efforts to distill this practice into a definition have been unavailing. But the common understanding of how to use the word has turned out to be all that is needed. Courts almost never have any difficulty in determining whether something is a religion or not.
The list of reported cases that have had to determine a definition of “religion” is a remarkably short one. The reference I rely on here, Words and Phrases, is one of the standard works of American legal research, a 132 volume set collecting brief annotations of cases from 1658 to the present. Each case discusses the contested definition of a word whose meaning determines rights, duties, obligations, and liabilities of the parties. Some words have received an enormous amount of attention from the courts. Two examples, Abandonment and Abuse of Discretion, drawn at random from the first volume of this immense compilation, each exceed 100 pages. Religion, on the other hand, takes up less than five pages. The question of what “religion” means is theoretically intractable but, as a practical matter, barely relevant. We know it when we see it. And when we see it, we treat it as something good.
American religious neutrality is studiedly vague about the good that it is promoting, and this may be a source of frustration to its admirers. But there is wisdom in this vagueness. Citizens do need to share an understanding of what is valuable. But when the details of this particular Valuable Something are so hotly disputed, the most effective way for the government to pay it reverence is just to shut up about it.
Friday ReadingSince it's the 21st of December, here's a little extracurricular reading to start your weekend.
Wednesday, December 12, 2012
To Avoid a Pile-On...
...I will simply point readers to Orin Kerr's critique of Jay Silver's recent critical review of Brian Tamanaha's Failing Law Schools book. I certainly don't mind criticisms of that book; I had some, and so have others. But I don't think Silver's criticisms are sound, both because they overstate Tamanaha's arguments and because they consist more of bromides than well-supported arguments. To pick just one extraordinary example, is it really the case, as Silver writes, that "[t]he time-honored Socratic and casebook method of legal instruction, administered by professional educators, is a snug fit with the pedagogical needs of future attorneys?" In any event, read Orin's post.
Thursday, December 06, 2012
On Epigraphs and Book Sales
Here's a fairly interesting review of a book called, "The Art of the Epigraph: How Great Books Begin." The review is critical of the book for collecting the epigraphs in a format that strips them from the context of the book, but both the review and the book offer plenty of interesting examples of epigraphs.
The usual advice for law review authors is to kill your epigraph. It's fair advice, insofar as the key piece of advice for law review authors is to kill as much as you can and leave just what you need. But I like an epigraph--a good one, anyway, and they're somewhat rare--even on a law review article. Readers are welcome to add their own examples of good (or bad) epigraphs on law review articles.
And, yes, this is also a back-door effort to drum up sales of my new book, First Amendment Institutions, which makes an excellent last-minute Hannukah gift. My book opens with an epigraph that had occurred to me long before I started the book itself, and that happens to be a gem of a quote for anyone interested in First Amendment institutions, intermediary institutions, pluralism, "freedom of the church," "little platoons," and so on. I won't quote it here, but it's from Dire Straits' terrific song "Telegraph Road." Here's my favorite version; enjoy.
Friday, November 30, 2012
Schrag and Tamanaha on Legal Education
Two very valuable contributions to the discussion of legal education and its financing were made this week, and neither of them appeared in the New York Times (or Salon). The first is this review by Philip Schrag of Brian Tamanaha's Failing Law Schools book. It argues, in brief, that while Tamanaha usefully collects many stinging criticisms of American legal education and its cost, he "understates the benefits offered by the federal income-based repayment plan." The second is this reply by Tamanaha, along with interesting comments by, inter alia, Schrag and Tamanaha.
Having written my own (positive) review of Failing Law Schools, I should note one area of overlap and agreement between my review and Schrag's. It is my closing point, and Schrag's as well: in thinking about reforming legal education, our focus should include clients as well as students, and specifically the mismatch between the number of lawyers and law school graduates and the number of middle- or low-income clients who need but do not receive or cannot afford legal services. Neither of us charge Tamanaha with being indifferent to this state of affairs; we simply argue that it was worth more discussion. I should add that, even with IBR factored in (and not everyone will avail themselves of IBR), I think Schrag undersells the extent to which high tuition and debt are responsible for the mismatch, asserting that "the cost of law school may be a relatively minor factor in the high cost of service."
As Tamanaha agrees in his post, Schrag offers a good deal of valuable detail about current loan repayment programs, and his discussion is a valuable supplement to Tamanaha's book. There are, however, a couple of areas where I think Schrag is wrong and Tamanaha is right, and Schrag's paper doesn't persuade me to change my mind.
The first is his argument that Tamanaha's proposal to loosen accreditation requirements and permit greater flexibility in law school programs would "accelerate and perpetuate" the division of law schools into "elite and non-elite wings." Schrag seems to think that Tamanaha's intention is to create, or permit, a "two-tier" system of legal education. That's not how I read him; I think he's pretty clear that his interest is in allowing a variety of models of legal education to emerge.
In any event, like Tamanaha, I agree that we already have a two-tiered system of legal education. The question is whether we can do anything to make sure that the second tier need not take on all the expenses of the first tier, with fewer of the benefits. As far as I can tell, Schrag doesn't ultimately make any actual arguments against a stratification of legal education, beyond the unsupported assertion that "I doubt that many members of the profession desire further acceleration of the trend toward two hemispheres" in the legal profession. Instead, he just assumes some kind of egalitarianism that makes such a prospect (which, again, is already the current reality) unacceptable. I don't think he's right; but even if he is, his paper doesn't offer any substantial arguments for his position.
Second, although Schrag's expansion of the IBR discussion is helpful, I agree with Tamanaha that it does not adequately justify the large number of schools with large tuitions and so-so outcomes. As Tamanaha writes in his post: "The intended purpose of IBR is to rescue grads who find themselves drowning under large educational debt--but it was not set up to be utilized by schools (fighting for their own survival) as an inducement to persuade prospective students to leap into risky financial waters that will likely leave them foundering." In my own review, I suggested that the dependence of law schools on things like IBR is something like a canary in a coalmine. As Tamanaha notes, that dependence has, for some law schools, become a marketing point to prospective law students. That seems perverse to me.
Schrag's response to this, both in his paper and on Balkinization, is, again, a general appeal to egalitarian values. Many countries subsidize higher education, he writes, and the US offers public subsidies for many things, so why pick a fight with IBR? That's a bigger discussion than anyone can have here. But it's really an argument about values, not facts. He writes in his paper that he "would not want to try to construct a principled basis on which to assert that partial subsidies were less warranted for lawyers than for philosophers, dentists, architects, business executives, journalists, political scientists, poets or many others who have graduate educations." I can see perfectly sensible reasons to subsidize some professional educations less than other fields. Or more: I can also see excellent reasons to offer fewer public subsidies to would-be poets! Having lived through three years as a student at McGill of annual student marches favoring tuition freezes, I was delighted by Quebec's efforts to raise university tuitions, and I was also pleased when Ontario allowed universities to substantially increase tuition for various professional schools. We may just have a philosophical disagreement here.
What I don't get, however, is why, if he favors the continuation of direct or indirect subsidies to law schools, Schrag isn't more eager to insist that those subsidies carry substantial expectations or conditions with them. "While we are at it," he writes on Balkinization, "would [Tamanaha] also eliminate the subsidies that Congress has provided for farm products, the oil industry, airlines, housing, etc.?" It's always tough to gauge tone on the Internet, but I sense that Schrag would not complain too hard if Congress did eliminate subsidies for, e.g., the oil industry. At the very least, I doubt he would complain if those subsidies were strongly linked to monitoring, transparency requirements, some required showing of efficiency, and some demonstration of a link between the subsidies and actual outcomes. If we are to heavily subsidize law schools, shouldn't we require the same thing there? England, among other countries that heavily subsidize higher education, also imposes heavy accountability burdens on schools and educators. Shouldn't he at least be willing--indeed, eager--to link IBR to a showing that law schools are keeping costs and tuitions as low as possible and providing decent outcomes for their students?
Finally, if I may pick a smaller bone, Schrag writes in criticism of Tamanaha's advocacy of loosening accreditation requirements to make lower-cost legal educations possible that such an approach ultimately might lead to the "jettison[ing] of many of the goals of the current system of legal education, such as teaching students to think critically about social problems that are caused or remediated by legal doctrines and institutions." Even if this is a sound goal, I'm not sure why it has to be the goal of every law school, or why accreditation requirements need to be uniform along the dimensions in which they're currently uniform in order to achieve it. In any event, to put it mildly, I doubt we are doing all that great a job of achieving this goal currently, or that current tuitions would be justified even if we were.
Again, both Schrag's paper and Tamanaha's response, as well as the comments on his post, are well worth reading--instead of, with all due respect, wasting one's time on this week's New York Times op-ed or responses to it.
Sunday, November 25, 2012
NOW AVAILABLE: First Amendment Institutions
I'm proud to announce that according to Amazon my new book, First Amendment Institutions, is now in stock and available for purchase. (It has a listed publication date of January 2013 but the books are already starting to ship.) Here is the link to the catalogue page from the publisher, Harvard University Press.
Although the book offers a fairly full and detailed argument for and description of First Amendment institutionalism, and applies it in a wide range of cases, it is still very much an attempt to begin a conversation about its ideas, not to present itself as the last word on the subject. Moreover, the book draws connections between First Amendment institutionalism and other developments in legal and constitutional theory, and thus may be of interest to folks other than students of the First Amendment.
Still, the First Amendment is its focus, and I hope that it will be worth reading by those interested in at least the following current issues: 1) the contraception mandate; 2) the pending university admissions case, Fisher; 3) cases like the recent University of Iowa law school discrimination suit; 4) recent decisions like CLS and Hosanna-Tabor; 5) government speech doctrine; 6) the public-private distinction; 7) unconstitutional conditions doctrine; 8) New Governance, constitutional experimentalism, and/or New Legal Realism; and, of course, 9) Niklas Luhmann. There is also a basic chapter on First Amendment theory and doctrine that law students taking a basic con law or First Amendment course might find useful as a short practical introduction to the field.
If I may, here are the blurbs for the book:
“As the world becomes more socially, industrially, governmentally, and technologically complex, it is increasingly implausible to imagine the protections of freedom of speech and press applying in exactly the same way in all contexts. An important dimension of the First Amendment is institutional competence. Which institutions should be trusted to make which kinds of content-based determinations of what is or is not said, or published? Paul Horwitz sets out the case for an institutional perspective on the First Amendment with careful argument, admirable balance, and meticulous scholarship.”—Frederick Schauer, University of Virginia
“In this comprehensive and original analysis of the First Amendment’s multifaceted applications,Paul Horwitz deftly argues that constitutional law should take institutions and their variety into account—libraries, newspapers, churches, and beyond. This book opens new lines of discussion and criticism for a new generation of scholars.”—Mark Tushnet, Harvard University
I'm glad it's out and hope it will provoke some useful and interesting discussions. Doubtless I'll keep promoting it from time to time, while trying not to go overboard. In the meantime, enjoy. P.S.: It makes a fine Christmas or Hannukah present!
Wednesday, November 07, 2012
Religion and Politics, circa 2012
At the New Republic, Amy Sullivan has a pretty good takeout on why religion didn't figure as much, at least in terms of public discussion, in the 2012 election. The relationship between religion and politics, of course, is of perennial interest to law and religion scholars, so I hope this post is at least tangentially related to "law" and not just politics. Sullivan certainly has a point of view in other posts and pushes it, and I don't always agree with that viewpoint, but she has also done a lot of good reporting in this area and this is a pretty decent piece.
One thing I think she underemphasizes is that both parties, in addition to what I hope was the fundamental decency of their nominal leaders on this issue, had good reasons to bilaterally disarm with respect to each others' religion. There was also some plain old cognitive dissonance involved: some evangelical voters who really do hold strongly negative views about the LDS were forced to reconcile themselves to it in this cycle. (And I should add that those views, for all I know, may have affected their turnout; and, for that matter, that every now and then I saw an anti-Mormon letter in the local paper, or fairly anodyne but quite unnecessary Mormon jokes from Democratic friends on Facebook.) Still, in general it is interesting how little of a real role religion played in this race.
Given the circles I travel in, many of my friends may find most interesting, and perhaps irksome, the third part of Sullivan's article, titled "The Catholic Bishops' Religious Liberty Campaign Has Flopped" and linking in part to an interesting essay written by a local priest in Washington, DC. I've pasted it in full below the fold. Here I think she is a little too forceful, and would add some counterpoints: 1) Catholic doctrine isn't, and by its lights shouldn't be, determined by vote; 2) that doctrine may legitimately hold that specific life issues are more doctrinally central than a variety of "seamless garment" issues; and 3) some of the reactions to the Church's views on these issues still held more than a little whiff of anti-Catholic sentiment, or at least ignorance about Catholicism.
But...I think Sullivan, and the writer she links to, make two important points, points that are relevant both for observers of these issues and for the leadership. The first is that the "religious liberty campaign," with specific regard to the contraception mandate, takes place in a context in which Americans seriously distrust many institutions, often including their own institutions and certainly including the Church. The second is that, although I happen to think the scope of exceptions to the mandate should be wider and that there are real religious liberty issues involved here, there is genuine room for reasonable disagreement about how religious liberty doctrine should be structured: whether generally applicable laws should require or merely permit accommodations, about whether those accommodations should be absolute or subject to a balancing test, about which entities should be able to claim those accommodations, and so on. I'll let the priest's op-ed speak for itself here, as Sullivan does, while noting that it's possible to agree with him on this and still support greater accommodations in this area:
“Bishops and Catholic publications used words like ‘alarming,’ ‘unprecedented’ and ‘unconscionable’ about the HHS mandate. But most people did not see it as an existential threat to our religious liberty. They saw it as a disagreement over government policy.”
"3. The Catholic Bishops’ Religious Liberty Campaign Has Flopped. Despite focusing its nearly-undivided attention on opposition to Obamacare and the accompanying contraception mandate, the U.S. Conference of Catholic Bishops has not managed to convince a majority of American Catholics that this is the issue that should determine their decision in the voting booth. Nor have they even won the ideological debate over whether this issue (referred to by the bishops with the much broader term “religious liberty”) should be the top priority of the U.S. Catholic church. In a recent poll by the Public Religion Research Institute (PRRI), a majority of Catholics thought that the church’s public statements and engagement on public policy should “focus more on social justice and the obligation to help the poor, even if it means focusing less on issues like abortion and the right to life.” A majority of Catholics—that includes Catholics who attend Mass at least weekly, as well as Catholics who support Romney.
At the same time, Barack Obama opened up a large lead over Romney among Catholics in the months that followed the bishops’ “Fortnight for Freedom”—a national teach-in about threats to liberty that focused on Obama’s contraception coverage policy. Nor does the Fortnight campaign appear to have moved Catholic opinions regarding the contested policy. According to PRRI polls taken both before and after the Fortnight, white Catholics are split precisely down the middle when asked whether “religiously-affiliated colleges and hospitals should have to provide employees with no-cost contraception coverage.”
What happened to the bishops' influence? One problem they face is the continuing erosion of trust in institutions—including religious institutions—that has taken place across American society. The Catholic church and its slow response to clergy sex abuse scandals has suffered a particular serious blow to its reputation for moral leadership. But it has also severely bungled its opposition to the Obama administration. A local Washington, DC priest penned an essay for the National Catholic Reporter this week with his thoughts about the religious liberty campaign's failure. It’s worth reading in full, but I want to quote his observation about the hyperbolic rhetoric of Catholic leaders: “Bishops and Catholic publications used words like ‘alarming,’ ‘unprecedented’ and ‘unconscionable’ about the HHS mandate. But most people did not see it as an existential threat to our religious liberty. They saw it as a disagreement over government policy.”
The bishops also seem not to have recognized that they have lost the edge they once held in the media as well. Not so long ago, if the Catholic bishops came out against a Democratic administration with the energy they have marshaled against several aspects of Obamacare, the story would not only make headlines but would dominate the storyline about that administration. But while journalists made note of the Fortnight for Freedom and have duly covered the bishops’ objections, the coverage is more pro forma, the way reporters cover a Glenn Beck rally or provocative remark from Pat Robertson. Whether they realize it or not, the bishops risk being seen as just another arm of the Religious Right, saved only by their occasional statements supporting anti-poverty programs or immigration reform."
The Libertarian Case for Positive Educational and Welfare Rights
OK, not exactly. I'm not sure whether he'd consider it a post about his libertarianism. And he doesn't argue for positive educational and welfare rights, constitutional or otherwise. Apart from that, though...
What spurred this post is Ilya Somin's argument on the VC yesterday that knowledgeable children ought to be allowed to vote. He addresses some standard objections in his post, but a number of his commenters wrote to argue that such a rule, if enforced by knowledge or literacy tests, would end up privileging some groups and disadvantaging others (as, indeed, previous tests have done in the United States). Indeed, given massive educational inequality in this country, it's hard not to see how this proposal wouldn't give much more electoral power to the wealthy, well-educated, mostly white elite. Unless....perhaps Ilya would welcome a trade-off: knowledgeable children get the vote, in exchange for guarantees of massive public/private efforts to assure meaningful educational and welfare rights to ensure that the opportunity to be a knowledgeable child voter is fairly and widely distributed among the entire population rather than limiting that vote to enclaves with better resources. I'm just going to go ahead and consider this Ilya's very subtle case for overruling San Antonio School District v. Rodriguez.
Tuesday, November 06, 2012
An Election Day Question: Is Joe Biden Demented?
Yesterday, I linked to a nonprofessional's diagnosis suggesting that the Republican leadership is sociopathic. Today, I thought it only fair to link to a story providing further diagnoses, one by a nonprofessional and the other by a professional (which is not to say he was acting in a professional fashion). They suggest, respectively, that Mitt Romney is suffering from mental problems and/or that Vice President Joe Biden is suffering from dementia. The story containing those diagnoses, as it turns out, is actually about the increasing partisanship and bitterness of cable news networks. Talk about burying the lede! What if one or more of those diagnoses are right?
Admittedly, others might take other lessons from this rash of diagnoses, such as: 1) practicing politics through long-distance DSMification is unhelpful, both as politics and as psychology; or 2) just as we might look for structural and environmental causes and cures if a large number of people in some particular area turned out to suffer from mental illness, so if we conclude that large numbers of politicians are crazy, we might focus more on the pathologies of the entire American political and cultural system than on partial analyses--analyses that also, coincidentally, confirm our own sense that we are rational and just, while the only explanation for our opponents' beliefs and conduct is that they are not. Granted, the latter approach is something that even those Americans who usually focus on structural pathologies of American politics sometimes forget. You Americans must get tired of commentary from foreigners that begin "You Americans..." Still, I've got to say it: From my perspective, it sometimes seems to me that you Americans are all crazy, or at least that many aspects of your political structure and culture are.
And with that, have a great Election Day!
Monday, November 05, 2012
An Election Eve Message
Elections can be emotional times, I know, so I thought a quick personal message might be appropriate and help provide some balm in this season. This is what I told my Facebook "friends," at least:
My own position on whom to vote for is fully thought-out, rational, and virtuous, most evidence of human limitations to the contrary. If you choose to vote for the other candidate, it cannot come down to a different but reasonable set of priors, priorities, and judgments. It must mean that you are ignorant at best, and possibly evil.* And although this country's two-party system and government structure is subject to a wide range of pathologies, those considerations are irrelevant to the basic fact that my position on any given candidate, although it necessarily involves a host of complex considerations and an overall balancing of interests, is wholly right and yours wholly wrong. Now let's have a clean, civil fight and remember our ultimate common brotherhood.
* After posting this, I realized I had misspoken. Apparently I should have said, ignorant, evil, and sociopathic.
Friday, November 02, 2012
Bishop Jenky's Letter
Bishop Daniel Jenky received some attention today for his order to priests in his diocese to read a letter this weekend, on the verge of the election. The letter can be found in full here. Some relevant excerpts:
Since the foundation of the American Republic and the adoption of the Bill of Rights, I do not think there has ever been a time more threatening to our religious liberty than the present. Neither the president of the United States nor the current majority of the Federal Senate have been willing to even consider the Catholic community’s grave objections to those HHS mandates that would require all Catholic institutions, exempting only our church buildings, to fund abortion, sterilization, and artificial contraception.
This assault upon our religious freedom is simply without precedent in the American political and legal system. . . .
I therefore call upon every practicing Catholic in this Diocese to vote. Be faithful to Christ and to your Catholic Faith. May God guide and protect his Holy Church, and may God bless America.
I should be clear that I don't agree with much of the hyperventilating that this letter has occasioned. But the bishop does some hyperventilating of his own. His letter strikes me as a document that wavers between wrong and bizarre--and I say that as a critic of the mandate.
Let me offer a few examples of things that either distress or bewilder me about the letter. First, I find the suggestion that "there has [n]ever been a time more threatening to our religious liberty than the present" in American history astounding, especially for a one-time history student. Leaving aside the pregnant phrase "Know Nothing," I must imagine that many native Americans, Jehovah's Witnesses, and Mormons, to say nothing of more historically aware Catholics, would have to take issue with Bishop Jenky on this one. I grant that this involves a matter of opinion as to which there can be no final resolution; I think I could make an equally strong case that the years 1980-1992 represented a greater threat to religious liberty than the present day, but I wouldn't expect to persuade the bishop to change his mind. That said, he is quite obviously wrong. For similar reasons, I'm not sure what to make of the claim that "This assault upon our religious freedom is simply without precedent in the American political and legal system," except that it is either wrong or silly.
Finally, I find the closing statement urging the faithful to vote fairly remarkable for a number of reasons. The letter is about the mandate, not about abortion or contraception themselves. I could full well understand a letter urging every member of the faithful to vote against any politician who supports either abortion or contraception, and arguing that a vote to the contrary would be a mortal sin. But the subject of this letter is a contested and contestable issue concerning the scope of government power to promulgate generally applicable (in a colloquial rather than technical sense) regulations and the extent to which the government, having already accommodated churches to some extent, is obliged to go further. I'm not one of the faithful, but this strikes me as moving well beyond either the bishop's expertise or his flock's obligations. Indeed, I'm surprised that he calls upon the faithful to vote at all. Again, I can understand him commanding the faithful not to cast a vote that constitutes mortal sin, but are they not free in good conscience to refuse to vote at all--if, say, they believe (and I don't necessarily share this view) that the President's leading opponent would repeal the mandate but otherwise act in ways that increased human suffering?
Wednesday, October 31, 2012
LST's "Score Reports"
The folks at Law School Transparency sent out an announcement today that they are offering an online "alternative to the U.S. News law school rankings," called the LST Score Reports. More information and links are available after the jump.
As I've said here before, I've been very impressed by my dealings with Law School Transparency and think it deserves attention and support. I'm afraid I haven't had a chance to dig in to the information, so I'm not in a position to vouch for it (or to say how my own institution fares). I hope and expect that it will receive analysis and critiques from other quarters, and no doubt there will be room for improvement. But I'm happy to get the ball rolling by linking to the project.
I will add that I think the most important statement in the announcement is the following: "[U]nlike rankings, the Score Reports do not reduce complex data to a single metric. Instead, the Score Reports focus on observable relationships to specific legal markets and job types. Only a small handful of schools have a truly national reach in job placement. The rest have a regional, in-state, or even just local reach. A decision tool should not obfuscate this reality; it should embrace it." Amen. I'm not adamantly opposed to national rankings, but I worry that they tend not only to overlook the degree to which law schools mostly serve regional markets; they also actively encourage law schools to focus on nationally measured metrics rather than local needs, and end up creating an undue amount of homogeneity in curricula, faculty, and other areas.
The announcement and links follow; judge for yourselves, and feel free to contact the LST folks if you have questions, comments, or constructive criticisms.
Today, Law School Transparency announces an alternative to the U.S. News law school rankings: The LST Score Reports.
LST has developed the Score Reports in an effort to produce a tool to help prospective students make application and enrollment decisions, keeping in mind that each person has a different risk tolerance, financial situation, and set of career aspirations.
The Score Reports are user-friendly tools for sorting law school employment outcomes, projected costs, and admissions stats. There is a Score Report for every state (includes only schools that place graduates there), every school (called a profile), and job types. They measure job outcomes, use a regional scope, and use real terms about the outcomes to allow prospective students to make an educated decision about not just which school to attend, but whether any school happens to meet their needs.
The Score Reports are not rankings, although they do serve as an alternative to conventional law school rankings. But unlike rankings, the Score Reports do not reduce complex data to a single metric. Instead, the Score Reports focus on observable relationships to specific legal markets and job types. Only a small handful of schools have a truly national reach in job placement. The rest have a regional, in-state, or even just local reach. A decision tool should not obfuscate this reality; it should embrace it.
You can view the Score Reports, and read more about them, by following these links:
Methodology (published in the Journal of Legal Metrics)
Thursday, October 25, 2012
Legal Intellectuals on Law School Reform
Concurring Opinions has been having a long and fairly interesting group discussion, with plenty of guests, about Robin West's new book Normative Jurisprudence. I think these CoOp book discussions are great, although I think the authors should be encouraged to delete the first one or two sentences of each post, in which a good deal of general flattery is thrown around. (The same accusation, in fairness, has been made by others about plenty of posts and comments here.)
I want to link to a couple of posts that appear to focus on curricular reform in law schools: this one, by Rebecca Lee, and this one, by Chai Feldblum. They are certainly thought-provoking, although rather hard to pin down; and it should be said that Feldblum has done a good deal of well-known and highly practical work in training lawyers. Still, these entries strike me both as highly problematic, and as potentially indicative of a serious gap between the ways different law professors discuss things like law school reform, curricular or otherwise, and also of a gap between the ways that some legal academics discuss law school reform compared to the ways that students, lawyers, and recent graduates struggling to find actual jobs discuss it. I won't say much more, because 1) I'm not sure my reasons for feeling this way are fully thought out, 2) I'm not sure I wholly understand their posts, and 3) to some extent I think my point, even if not fully thought out, will be evident to anyone who reads those posts.
I will add one thing, though: It seems to me if Feldblum is serious about thinking that "it is essential for law schools to give students a rich grounding in theories of justice concomitantly with teaching them such legal skills," and that "giving students a rich grounding in theories of justice is imperative both to changing our legal approach and our scholarship in the manner that [West] is suggesting, then there are models out there of law schools that combine "a thick understanding of justice and moral goods" with efforts to train and help students to implement those thick understandings in the real world of lawyering. The one that comes most to mind is Regent Law School.
Tuesday, October 23, 2012
More Allegations Against Thomas Jefferson
The law school, not the slave-owner. In this case, they come via Law School Transparency, which reports that a former assistant career services officer at TJ, in a sworn statement, "admits that she fabricated graduate employment outcomes for the class of 2006. [She] alleges that her fraud was part of a deliberate scheme by the law school’s administration to inflate its employment statistics." The release, along with the statement, is available here. Three things about this: 1) Obviously, I am in no position to make a statement about the accuracy of the allegations. 2) Without seeking to minimize the allegation, I will note that it describes only conduct by one school in one year. The statement was made in August, in connection with current litigation against TJ. I'm not sure why it is being publicized now, whether because it was just recently noticed or as part of a media strategy on the part of plaintiffs. The school says it "stands behind the accuracy of the data that we submitted to the American Bar Association," which certainly seems like a denial, albeit in some ways not a full-throated one. 3) I have had some limited dealings with the folks at Law School Transparency and have been very impressed by the group and its efforts.
UPDATE: A response from TJ is here.
Monday, October 22, 2012
God, Football, and Texas
Law and religion scholars and others may have been following with interest the case of a Texas high school football cheerleading squad that has been litigating for the right to display banners featuring religious messages--typically Bible verses--at football games. Here's a recent story about a state court ruling last week enjoining the school district and allowing the practice to continue, and here is the state's petition to intervene in the case, which includes some relevant details.
The New York Times has an editorial about the controversy today. It argues that the conduct violates the Supreme Court's 2000 decision in another Texas football/religion case, Santa Fe Independent School District v. Doe. The editorial says that in that case, "[T]he Supreme Court said the Constitution prohibits a student from delivering prayers over the public address system before each football game because that practice violates the First Amendment’s Establishment Clause, which forbids government from favoring a particular religion." It argues that the various public officials, including the governor, who have jumped very visibly onto the cheerleaders' bandwagon "are blind to the dangers to religious freedom when government shifts from being neutral about religion to favoring a particular one."
Some of my friends and co-bloggers take a particular delight in bashing the Times for its failings; I'm not one of them.But I think the editorial overstates the meaning of Santa Fe and lacks enough information to say whether the banners' display violates the Establishment Clause. The problem in Santa Fe was not simply that religious messages were being broadcast at a school event. In some circumstances, such as the inclusion of religious messages in a valedictorian address at a graduation by a student who has been fairly selected according to academic criteria rather than by virtue of the likely content of her speech, there is no constitutional problem with such a religious message, even if the school's resources are used to amplify and broadcast it. The problem arises when the school, through overt or covert means including the use of fairly foreordained school-administered student voting, is actively involved in collaborating with students to encourage or engineer the dissemination of religious messages. The summary of the editorial on the Times's web site reads: "A Texas case about religious expression at a public school is testing whether a landmark Supreme Court ruling is still the law of the land." The editorial itself doesn't go that far, and I don't blame the editorial writer for what was posted by some website staffer. But that statement certainly is overstated. The question is whether Santa Fe applies in this case; this isn't a frontal assault on that opinion, as Texas's petition makes clear. Nor does the editorial have anything to say about Texas's Religious Viewpoints Antidiscrimination Act, which arguably applies here and which has both uncontroversial and more controversial aspects.
Does Santa Fe apply here? That depends on the facts, which unfortunately I haven't been able to find in any decent form in the stories covering the controversy, or in the short judicial order enjoining the school. The cheerleaders say they chose the messages on the banners themselves, and made them off school property. That's a start. But I would want to know whether that choice was unilateral and unanimous, whether the school was openly or quietly involved in the process, what rights a single dissenting cheerleader would have to display a different banner ("The Kountze Lions--products of evolutionary triumph!"?), and so on. Without such facts, the practice might be permissible. If the school, the coach or faculty advisor, or other officials were more involved, however, it would be a different story.
Those who are interested in Texas high school football and the Religion Clauses, and who have already burned through all the episodes of Friday Night Lights, may want to read my paper on the Santa Fe case. For a broader overview of Texas school conduct--and some public threats against those who have complained about various religious practices, including school-sponsored practices, in and around Texas schools, especially since Santa Fe--see this recent ACLU of Texas report, available at a link here. Whether the cheerleaders are within their rights, which they may be, or not, it's worth reading this report and remembering that there's a reason the plaintiff in the Santa Fe case was called "Doe."
UPDATE: Marc DeGirolami has a post on the case here. He notes quite correctly something I should myself have noted: that the Santa Fe defense seems to have dropped out of the litigation. Like Marc, I find that odd.
Wednesday, October 10, 2012
Oral Argument in Fisher
Today the Supreme Court holds oral arguments in the Fisher case, involving the use of a race-conscious, although holistic, admissions plan at the University of Texas in addition to its state-mandated use of a top ten percent plan. With eight fairly closely divided Justices sitting in this case and an array of factual complications, it may be difficult, it seems to me, to get to five clear votes for a major statement of law on the issue. Obviously, though, if the Court speaks clearly it will indeed be a huge case, one that again likely turns on Justice Kennedy, to whom most of the briefs were addressed as clearly as if they'd all begun, "Dear Tony, and may it please the Court." In the meantime, closely placed sources are no doubt diving through Dumpsters to figure out what the swing Justice had for breakfast this morning, and con law teachers set to teach the Fourteenth Amendment next semester have a lot of "[tk]" marks in their draft syllabi.
Although I thought Judge Higginbotham's opinion for the Fifth Circuit below was excellent and should be upheld, I won't venture any predictions or strong views here. I will add a couple of things. It seems to me there are a host of oppositions involved in this case, not just one of "diversity" vs. "race-blindness." They include, in particular, a number of oppositions that might broadly be thought of as involving firm constitutional rules vs. a permissible range of institutional experimentation, or deference versus lack of deference. Much of this will play out doctrinally in the question how deference to the university, if any, should play out (if at all) in the narrow tailoring inquiry.
This is one of the central differences, to me, between former Justice O'Connor, who wrote the Court's opinion in Grutter, and Justice Alito. Justice O'Connor at least paid lip service in Grutter to the idea of the autonomy of higher educational institutions and the need for deference to those institutions, although I can't say she wasn't driven to use this language by other considerations. I see no signs that Justice Alito is of the same mind on these questions. Like the specially concurring judge in the court below who urged the reconsideration of Grutter, Justice Alito strikes me as someone who has a pretty firm and conventional (also, in my view, too rigid and outdated) view of the university and its purpose and is not inclined to defer to universities that see their mission differently. His screed against "political correctness" in the CLS case as something that is simply and alway contrary to the academic mission of the university is a strong example of that. To the extent the Court is inclined to extend any deference to the university in this case, I actually thought the record suggested that UT did a good and sincere job of considering what its mission was and how this should affect its admission policies when it came to reexamine them after Grutter; it was not just a crude afterthought to let it do what it wanted to do anyway. But the degree of deference the university will receive for this kind of thoughtful work may be affected by a sense among several Justices (one that is shared more widely elsewhere) that affirmative action in universities has become something of an industry or bureaucratized affair, and that some universities' defense of racial diversity has become routinized and dogmatic rather than a thoughtfully and intimately arrived at product of genuine academic consideration. Whether and how any of this will play out remains to be seen, obviously.
I'm not in a position to offer hypertext links, but I will add that Scotusblog has a number of great roundups on the case, and that the Vanderbilt Law Review has a good series of short pieces online discussing it as well. Finally, Professor Eboni Nelson has an op-ed in The State, which came out in the last day or two, arguing that the question whether to adopt race-conscious admissions policies should be squarely within the hands of the universities, not the courts. I am broadly sympathetic to that view, but with two caveats: 1) This discretion cuts both ways, of course, and I would perhaps have been happier if the op-ed had stated more emphatically that universities should be equally free to reject such policies as inconsistent with their mission(s); and 2) this institutionally oriented view leaves open the harder question of what do do when neither the courts nor the universities, but the people of the states themselves, intervene to set admissions policies for their universities, through the kinds of legislative or popular initiatives we saw in Michigan and California--and Texas, whose top ten percent plan will loom heavily in today's arguments.
Friday, October 05, 2012
How (Not) to Defend (Legal) Scholarship
I've really enjoyed and appreciated Jason Solomon's guest posts on Prawfs in the past couple of weeks and am very sympathetic to some of the questions he's been asking about the cost and value of law schools. In his latest post, Jason argues that "one benefit of the increased scrutiny that the taxpayer subsidy of law school loans are about to receive is that we -- the legal academy -- will be forced to defend the value of legal scholarship." He questions attempts to justify legal scholarship on certain kinds of instrumental bases, such as that it helps enhance schools' reputations. "[L]egal scholarship has to be defended on its own terms, and that's a good thing," he writes. I agreez! In his view, legal scholarship has lots of things to offer that are of "importance to the real world." And he links to a post by Marcia McCormick that argues on similar grounds that "there is great value in legal scholarship. The public benefits by getting legal and government structures that make real people's lives better. Students benefit from the scholar's ability to turn chaos into order and communicate both the chaos and the order to someone who hasn't done the same work."
I enjoyed Jason's post, but let me add a few thoughts of my own.First, as Steven Lubet suggests in the comments, I think this doesn't really answer the key question. Except for a subset of critics who believe legal scholarship ought not exist at all (or something; they're not always very clear about this), the real question is how much legal scholarship ought to exist, or at least how heavily subsidized legal scholarship ought to be. Pointing to useful scholarship--or crap scholarship--doesn't tell us whether we as a system are paying too much for it.
Second, I think Jason has unwisely just substituted one set of instrumental arguments for legal scholarship for another one. I think there ought to be more doctrinal, empirical, practical, useful legal scholarship. But I also emphatically think there's a place for good scholarship, legal or otherwise, that is not necessarily useful, or whose value is much more indirect, including simple contributions (or attempted contributions) to understanding the world better. I don't depend on legal history or theory--or non-legal history or philosophy--to be functionally useful; I just want it to be good, true, and productive of thoughtful discussion. If Jason says something useful about civil justice in his writing, I think that's a good in itself, whether he finds takers in the legal system or not. If someone writes about Kantian theory and the ACA decision, I don't care much that Chief Justice Roberts is unlikely to pay much attention to it; I just want it to say something intrinsically correct and interesting. There is a lot of crap in legal scholarship, period, and some good stuff; not all the instrumentally oriented legal scholarship is good, and not all of the non-instrumentally valuable scholarship, even if it's not useful, is bad. We ought to be asking hard questions about the standards for and quality of legal scholarship, and we ought to be asking how much we pay for any and all of it. But I think defending it on strictly instrumental grounds is a mistake, and perhaps even a disservice to scholarship, whose goods are sometimes much more intrinsic than instrumental. Truth is not always a particularly instrumental value, but I think it is a value, and one worth upholding.
Finally, and somewhat relatedly, I think either of our views leave a lot of room open for other questions about how we structure the conditions for scholarship. Whether you think it ought to be instrumentally valuable or just of high quality regardless of its instrumental value, that doesn't tell us much about how to improve the ratio of good to bad scholarship, what aspects of the current academic structure are necessary to scholarship and what aren't, and so on. I see no reason in principle, for instance, why Jason and I couldn't disagree on the purpose and value of scholarship, legal or otherwise, while still agreeing that, say, there ought to be a robust requirement of post-tenure review, or that 70 percent of the law journals out there ought to be eliminated, or that law schools ought to be able to make much greater use of adjunct professors, or that most tenure-track law professors ought to be shifted into undergraduate schools of law, or history or philosophy departments--or, if the demand isn't there, fired and left to fend for themselves in the non-academic sector. I'm not arguing for these things; I just don't think our position on the value of legal scholarship necessarily says much about them.
Pulpit Freedom Sunday and Church Autonomy
In case you haven't marked your calendars yet, Sunday is "Pulpit Freedom Sunday," a day on which churches, encouraged by the Alliance Defence Fund, will engage in more or less overt endorsement of candidates for political office, in contravention of the rules limiting electioneering by tax-exempt organizations, and dare the IRS to enforce the law against them. (Stories here and here, to start.)
As my friend and co-blogger Rick has written, the law in this area is "intimidating," and I can't do an adequate job of examining it all here. I do want to ask one question about it, however. Rick and I have both written approvingly about a principle of church autonomy. Lloyd Hitoshi Mayer has written an excellent article arguing that church autonomy, or principles of "institutional free exercise," militate against the enforcement of the anti-electioneering laws with respect to churches, writing that "a proper appreciation of that view would bar the government from applying the prohibition to not only sermons but also a broader range of internal communications from religious leaders to the members of their houses of worship on matters of religious importance." Does belief in some form of church autonomy require this position?
I think the answer is no. Church autonomy is at bottom about the right of churches to be left alone, to preserve a sphere of non-interference from the state even in the face of neutral, generally applicable laws so that they can do their work, and to recognize the potentially limited scope of the state's jurisdiction over churches. That work most certainly may include speaking out in favor of or against policies and candidates; it is absurd to suggest that this kind of activity falls outside the proper scope of religion. An institutional view of churches and institutional religious freedom certainly suggests a right to speak out on such issues. But I don't understand it to include a right to tax-exempt status, or a right to receive conditional benefits shorn of those conditions, provided the conditions are generally applicable. The church's fundamental right to exist has much more to do with its right to subsist and thrive (or fail) on its own bottom than with some kind of right to state support for its existence. With Hosanna-Tabor decided, albeit with many details left to be worked out, the debate over church autonomy will be moving increasingly toward its role where "funding with strings" is involved, in my view. There's a good deal to be written in this area. But in my view, while church autonomy requires a sensitive application of conditions in this area, it does not free churches that seek to participate on an equal basis in receiving state subsidies from the obligation to abide by the conditions of those subsidies.
There may be other issues here, such as the application of RFRA and the doctrine of unconstitutional conditions. But church autonomy itself, I think, does not offer any additional support for "Pulpit Freedom Sunday." To the contrary, I think there are good arguments for supporters of church autonomy that, not that refraining from electioneering is a good thing--that's a matter for individual churches--but that tax-exempt status itself is a dangerous thing for those who believe in what has been called the principle of "a free church in a free state." Churches are free to seek to participate on an equal basis in seeking state subsidies and exemptions, in my view, but they ought to consider at the same time whether doing so is always the best thing for that church and its independence.
Tuesday, October 02, 2012
Why You Are So Rude Online
I don't know what made me think of it, but readers may enjoy this article in the Wall Street Journal exploring the reasons why we you are so rude online. Now, if you fat, stupid bastards will excuse me, I need to go get a candy bar.
Friday, September 28, 2012
The Unintended Reformation, Pro and Con
I'm very grateful to Rick for pointing me over the summer to a fine new book by Brad Gregory, The Unintended Reformation: How a Religious Revolution Secularized Society, published by Harvard University Press. Here's a description:
In a work that is as much about the present as the past, Brad Gregory identifies the unintended consequences of the Protestant Reformation and traces the way it shaped the modern condition over the course of the following five centuries. A hyperpluralism of religious and secular beliefs, an absence of any substantive common good, the triumph of capitalism and its driver, consumerism—all these, Gregory argues, were long-term effects of a movement that marked the end of more than a millennium during which Christianity provided a framework for shared intellectual, social, and moral life in the West.
Before the Protestant Reformation, Western Christianity was an institutionalized worldview laden with expectations of security for earthly societies and hopes of eternal salvation for individuals. The Reformation’s protagonists sought to advance the realization of this vision, not disrupt it. But a complex web of rejections, retentions, and transformations of medieval Christianity gradually replaced the religious fabric that bound societies together in the West. Today, what we are left with are fragments: intellectual disagreements that splinter into ever finer fractals of specialized discourse; a notion that modern science—as the source of all truth—necessarily undermines religious belief; a pervasive resort to a therapeutic vision of religion; a set of smuggled moral values with which we try to fertilize a sterile liberalism; and the institutionalized assumption that only secular universities can pursue knowledge.
The Unintended Reformation asks what propelled the West into this trajectory of pluralism and polarization, and finds answers deep in our medieval Christian past.
It's a terrific read, encyclopedic in the sources it draws on and compelling in spinning them together into an interesting and valuable narrative.
That said, I'm also grateful to Rick for pointing me to this critical review of Gregory's book by Mark Lilla. Lilla writes that the book is part of a trend toward "The Road Not Taken" narratives, all nostalgic about the medieval Christian world, among Catholic thinkers. "Gregory would have us believe that he is writing conventional history," Lilla writes. "But the deeper you delve into this book, the more you begin to feel that you are watching a shadow-puppet play on the wall of some Vatican cave. A straightforward history of the post–Reformation West written from an explicitly Catholic standpoint would have been a welcome addition to our understanding of the period and of ourselves. Instead, Gregory has offered up a sly crypto-Catholic travel brochure for The Road Not Taken." Gregory's book, he says wittily, is the product of "an inverted Whiggism—a Whiggism for depressives."
Rick himself is not entirely taken with Lilla's review. I'm more sympathetic to it. As I said, I sincerely like and learned from the book. But I did get the sense that Gregory's book would not suffer--might even benefit--if the reader simply skipped the last ten to fifteen pages of each chapter. I feel sure that Gregory would not have written the book but for those sections; but I also think those sections are the most questionable parts of the book. Certainly they make the slyness of the preceding materials more apparent. Still, I encourage you to read the book--and the review--for yourselves. Whether you agree with its narrative or not, it's still fascinating, highly readable (I will forgive much from an author who mentions the Insane Clown Posse in the introduction to a book about the historical consequences of the Reformation), and full of interesting details and synthesis.
Thursday, September 27, 2012
My cavalcade of fall book notices continues with a superb collection. Modern Pluralism: Anglo-American Debates Since 1880 is a collection edited and introduced by Mark Bevir and published by Cambridge University Press. As Bevir notes in his introduction, the book "trac[es] the history of pluralism" from the late nineteenth century to today "and thereby enrich[es] our understanding of the nature of pluralism and its contribution to current policies." It describes and devotes sections to each of the "three main traditions of modern pluralism," which are distinguished somewhat differently and more clearly than they often are in the legal literature: "the liberal constitutional tradition, the radical socialist tradition, and the empirical tradition."
Those of us in the legal academy (all ten or so of us) who are interested in reexamining and, to some extent, reviving interest in the British pluralists of the late nineteenth and early twentieth century, such as Laski, Maitland, Figgis, and Cole (and their German forebear and influence, Gierke)--a phenomenon that seems to rise and fall like clockwork every generation or so--will find special interest in the first four chapters. I am particularly taken by Jacob Levy's paper, "From liberal constitutionalism to pluralism," which seeks to place the British pluralists in a liberal rather than a non- or anti-liberal context, a move that he says is made "oddly infrequently." Levy, like some legal scholars I know, "remain[s] convinced that the pluralists made real intellectual progress, and have something to teach us still as we struggle with questions about freedom of association, the limits of the state model of absolute sovereignty, and the relations among individuals, intermediate groups, and the state." In an age of cases like Christian Legal Society, Citizens United, Hosanna-Tabor, and Fisher, there are plenty of reasons for legal scholars to find this material interesting and valuable. And if Levy's argument helps create room for conventional modern liberals and fans of the British pluralists to break bread together, all the better.
I'm still dipping into the book, but the whole thing looks very worthwhile. It is expensive--priced for institutional purchase at some $90 for a 250-page collection--but well worth having your library order. Enjoy!
Tuesday, September 25, 2012
Fall is a great season for law books, and I have a bunch to recommend, but I thought I'd start with two of them. By way of background, when I was in my first year of law school, I was just coming out of journalism and felt somewhat disconnected from what I was studying at first. What changed was coming across a large number of relatively contemporary (ie., 20th century) biographies and histories in the dark and lonely sub-basement of the Columbia law library, where I was purportedly studying. They helped put a narrative frame on the law for me and gave me a way in to the tradition and its conflicts. I've been attracted to those kinds of biographically based intellectual histories of the law ever since.
A book has just come out that would have greatly appealed to the young me, and still does: James Hackney's Legal Intellectuals in Conversation: Reflections on the Construction of Contemporary American Legal Theory. It consists of a series of transcripts of well-conducted interviews with some of the leading figures in the field of legal theory in roughly the 1970s and 1980s, including Duncan Kennedy, Richard Posner, Catharine MacKinnon, Patricia Williams, Bruce Ackerman, and Jules Coleman. It is about their ideas, of course, but it's also about their backgrounds, influences, and intellectual and interpersonal conflicts. It situates them incredibly well and is a tremendously entertaining read, every bit as exciting as the title would suggest. One strong note in the book, which is certainly part of the interviewer/author's perspective but emerges as well from the interviewees, is the sense that there were grand arguments afoot in those days about legal theory, and that the modern age by contrast features much less conflict but also much less ferment. I must say in particular that while I'm not terribly familiar with Jules Coleman's work, alas, his interview is terrific and contains some strongly personal grace notes. The book is well worth checking out.
I also am surprised that more attention has not yet been paid to another forthcoming book that would have been another pleasure to encounter in the sub-basement of my youth. In December, Oxford University Press will publish Reason and Imagination: The Selected Correspondence of Learned Hand, edited by Constance Jordan with an introduction by Ronald Dworkin. The book, says the press,
offers a unique sampling of the correspondence between Hand and a stellar array of intellectual and legal giants, including Justice Oliver Wendell Holmes, Theodore Roosevelt, Walter Lippmann, Felix Frankfurter, Bernard Berenson, and many other prominent political and philosophical thinkers. The letters--many of which have never been published before--cover almost half a century, often taking the form of brief essays on current events, usually seen through the prism of their historical moment. They reflect Hand's engagement with the issues of the day, ranging from the aftermath of World War I and the League of Nations, the effects of the Depression in the United States, the rise of fascism and the outbreak of World War II, McCarthyism, and the Supreme Court's decisions on segregation, among many other topics. Equally important, the letters showcase decades of penetrating and original thought on the major themes of American jurisprudence, particularly key interpretations of the First, Fifth, and Fourteenth Amendments, and will thus be invaluable to those interested in legal issues.
I can't wait for this one either. Christmas shoppers, take note!
Tuesday, September 18, 2012
What I Told the Aspiring Law Professors
It was absolutely great to be at ASU for the Aspiring Law Professors conference this past weekend. My hosts were terrific and it was wonderful to meet the aspiring lawprofs and the faculty members from near and far who came to help out with the conference. Given the interest in the aspiring law professor thread here and the fact that not everybody went or could go, I thought I'd add a few words of summary from my talk.
By way of preface, the audience was roughly divided between those with strong conventional qualifications (which I took as a given, while noting that I'd be perfectly happy if law schools adopted other qualifications besides the usual ones) who are already in or about to enter the job market, and lawyers with some interest in learning about the job market but who may not have conventionally attractive qualifications. It's difficult to speak to both groups! One wants to be supportive but not falsely encouraging. Again without agreeing with the usual measures and qualifications, it seems true to me from my experience on hiring committees that the idea that an applicant is competing with several hundred other applicants is somewhat false; a first cut at the first distribution results in rejections for a substantial number, and more serious consideration of many fewer applicants. That's good news for the conventionally qualified, but should give great pause to those who don't have those qualifications but apply anyway. Given the time and money they put into the process, it's important for them to learn about the process up front and to think hard about whether to go forward anyway. That doesn't mean people with unconventional qualifications can't get jobs: I did, despite some unconventional aspects to my resume, and so did one of my main hosts at the conference. But it's important not to go into things blind (which I take it was one of the primary, and saluatary, reasons for the conference itself). Some of those candidates may want to reconsider altogether, while others may want to think about how they can retool their qualifications and writing before entering the market.
Having said that, one of the main themes of my talk was the idea of "vocation." I take the idea of a vocation as a law professor very seriously, and I think that one who has a genuine vocation and some good reason to think they might succeed at it shouldn't throw it away lightly. To that end, I pointed out--and I'm not sure whether this was a good thing for the keynote speaker at a conference for aspiring law professors!--that I ended up having to go on the market three times. Some of that has to do with the vicissitudes of given years and hiring needs and so on, and some has to do with personal vicissitudes: the first year I was on the market, the conference came three weeks after back surgery, I was in a brace and drugged up, and I'm sure my interviews showed it. It also had to do, frankly, with not being quite ready. My job talk was not where it should have been and I wasn't as ready to talk about my work and my agenda as I should have been. I would have been better off waiting another year. My broader point, though, was that while people need to think strongly about whether they really have a vocation and qualifications, if they do they should not give up too readily, and should take some sustenance from knowing that others have succeeded on the market despite initial failure.
My talk obviously covered a good deal of general advice about the application process, the meat market interview, and the job-talk. I won't reiterate all of that except to add that I emphasized the importance of fit with a particular school and its location. I argued that just having canned knowledge about a school based on brochures etc., while nice, isn't enough. Among other things, that information can be misleading: if you say to a committee, "I really, really want to come to your school because of your Center for X," it might turn out that that Center really consists of a single professor and that the school has no real interest in hiring more people in that field. It is also the case that many people come through schools like mine (Alabama) with questions about living in that area that either 1) end up asking the equivalent of, "How much New York is your location?" or 2) come off like anthropologists investigating the quaint custom of the natives. I argued that more important than getting a few facts straight about the school is asking that school what it considers its foundational strengths, where it is hoping to go, and how you can help. A similar attitude toward living somewhere new works as well. In short, you should imagine yourself making a life there, and ask how you can make it a better one, both for yourself and the school. Personally, I don't mind interviewing talented people who might be poached by lateral offers; to the contrary, I like it. But I do mind interviewees who make it clear they have little long-term interest in being at your school and view it as a short-term resting place; I want people who are going to be committed to the institution as long as they're there, who will make sure that any personal glories they enjoy redound to the benefit of their school as long as they're there, and who will think and speak kindly about the place once they leave. The other broad thing I said about the market is that committees are looking for prospects who are, in a sense, already tenure-ready: not in the sense that they could or should get tenure tomorrow, but in the sense that they are already confident about where they're going, and it's evident that they won't stop working once they get tenure. I also couldn't help referring the audience to Martha Nussbaum's great piece Cooking for a Job, which points out the ways in which the law hiring process rewards glibness over thoughtfulness, and urging them to keep it in mind, at least for when they're hiring themselves.
The last part of the talk returned to the matter of vocation. For me, at least, the sense of vocation means that one ought not only consider the pleasures of working in the legal academy, which are great, but also its duties. That means, at the least: 1) thinking about your students and what you can and should be doing for them, both in terms of teaching and in terms of job-hunting; 2) as a corollary to the last point, it means that even though you may have come to your school from some distant place, such as New Haven, you have an obligation to learn about the local legal market and its needs, rather than just assuming that your job is to send the top one percent of your class to big firms in New York or DC; 3) thinking about your school and how you can make it better, and not just getting wrapped up in your own work; that includes an obligation to speak up about local law school reform issues even if you're still untenured; 4) thinking about the larger profession(s), both the legal academic profession and the legal profession itself; that means that you have an individual duty to think about "law school crisis" or "scam" issues and to address them, both at your own school and in the broader environment; and 5) thinking about what you can do, once you're a professor, to pay back your debt to the many people who helped you get your job, by spotting, encouraging, and helping promising and talented academics or potential academics.
I'm not sure talking about these duties will help anyone get a job, although I suspect interviewees will get more and more questions this and next year about "law school crisis" issues. But I doubt I would have agreed to give the talk if I hadn't had an opportunity to talk about these issues. I take the idea of vocation, and the duties attached to it, very seriously. Although this is changing with the rise of JD/Ph.D's and VAPs, many entrants to the legal academic profession haven't had much of a chance yet to think about what it means to be a teacher or scholar and what duties go along with it. Once they put their heads down and start chasing tenure, it may be years before they look up again and think about these matters. I think it's important to think about those duties--especially the duty to think about one's students, and about the profession(s) as a whole--and take them seriously, right from the start.
Again, it was a complete pleasure to be at the conference and to meet some new people. I wish them luck in whatever path they take and I'm happy to hear from them via email or comments.
Thursday, September 13, 2012
Aspiring Law Professors ConferenceI'm looking forward to seeing those who will be attending this conference. Just a note to let you know that I looked hard at the questions you sent me in response to my earlier post about this, and will try to address as many of them as I can, although not always in full detail. For my sins, I've also read through the many, many comments and questions at the Prawfs "Clearinghouse" post, and I've tried to keep those in mind too, although, boy, I encourage folks to relax a little, at least once they get to the meat market itself. (Not that I don't understand the anxiety; I just want to make sure people stay healthy, too.) If you have particular questions you'd like me to answer, please don't hesitate to email me and let me know in the next day or two. And if you're a professor out there with particular advice you think is very important, same thing. I hope I get to meet all of you, shy as I am, but I hope you won't be shy about saying hello or corresponding. And remember, it's a dry heat.
Wednesday, September 12, 2012
Are All Legal Ethics Professors Worthless Idiots?
I ask this question not because I think it's true--I abhor generalizations like this (for the most part)--but because Paul Campos either couldn't pass up what he thought was a nice witticism, regardless of whether it is true or false, or he believes it to be an accurate statement.
Disclosure: I teach legal profession, although I mostly don't write in the area. I don't think whether I'm an idiot or not is related to that fact.
Monday, September 10, 2012
Law and Religion Scholars: Attend This Program!
One more note on the AALS program this year. I ought to post this closer to the meeting, and perhaps I will repost it. But I was so excited I couldn't wait. This year the Law and Religion section will be holding a program titled "Freedom of the Church," in which a number of law and religion scholars will ask questions about the foundations, nature, and limits of "freedom of the church," or church autonomy, from both supportive and critical perspectives. I encourage everyone to attend. But there's another panel I hope you attend as well...
This year the Section on Sexual Orientation and Gender Identity Issues will host a program titled "Straight Supremacy in the Name of God: Examining Religious Liberty from the Standpoint of its Victims." Here's the program description:
Much has been done to reduce animus against sexual minorities. However, lesbian, gay, bisexual, and transgender persons and other sexual minorities can still face de jure and de facto discrimination. In particular, these offenses often thrive under the rubric of constitutionally-protected religious freedom. Because of their uniquely privileged status, animus claims based on faith can perpetuate and extend invidious forms of discrimination that would be unacceptable if predicated on any other ground. To provide a critical counterpoint, panelists will explore the tensions between religious liberty and the interests of sexual minorities and identify ways of engaging with and contesting religiously-framed bigotry.
The panelists, including one I have written about here before, include a number of fine scholars on subjects including law and sexuality, critical theory, and (in some cases) religion. I strongly encourage law and religion scholars, and others interested in the relationship between religion and law, policy, and politics, to attend this session! I'm sure you will be welcome and that the resulting dialogue between panelists and audience will be productive.
Crisis? What Crisis?
Last year, I noted my disappointment that the AALS had approved no "hot topic" proposals for discussions of the so-called "law school crisis" at its annual meeting, but also commended it for devoting several formal panels to the topic. In the event, I still thought it had done too little to discuss questions relating to legal education and the legal economy or to target them better in the panels it did have, but something is surely better than nothing.
This year, the approach seems to be closer to nothing than to something. As far as I can tell from reading the 2013 program, there are only one or two such programs this year, and I think that's a generous count. (By all means correct me if you think I've read the program wrong!) One of those sessions involves Bill Henderson, so that's a distinct plus. Still, I'm dismayed that there isn't much more. As I did last year in the face of some cruder criticisms, I will certainly defend the idea of the professional meeting itself, and of panels discussing a wide range of doctrinal and theoretical issues primarily of interest to scholars. But I'm definitely disappointed that the AALS didn't do more to discuss what continue to be genuine questions about the welfare of students, the levels of tuition and debt, the future of graduates, failures of transparency by schools, and the soundness of what we do pedagogically. Perhaps the AALS will make up for its failure through the hot-topic process this time; I certainly hope so, and I certainly hope law professors out there will get busy planning and proposing such discussions.