Tuesday, November 18, 2014

Lowe on American Legal History Since 1998

I quite enjoyed Jessica Lowe's article, Radicalism's Legacy: American Legal History Since 1998. An economical 12 pages, it surveys developments in American legal history scholarship in the past decade and a half or so, framing it around the continuing influence of Robert Gordon's famous piece Critical Legal Histories

In Lowe's telling, much of the key work done since 1998 can be grouped into a few categories: "The first four dominated the field: legal pluralism, civil rights and rights consciousness, state-building, and citizenship. In addition, other scholars experimented with the construction of racial identity, often using the more ethnographical or narrative approach favored by critical race theory. Finally, senior scholars continued to produce more sweeping studies, often examining American law over the course of ambitious spaces or time frames."

Of particular interest to me is Lowe's discussion of the "totalized contingency," in Christopher Tomlins' terms, that emerged from later efforts to carry on Gordon's work. Quoting Tomlins, she writes:

The proliferation of contingency and indeterminacy had spawned a field full of studies emphasizing merely, as Christopher Tomlins termed it, "plurality." Not just legal pluralism, but something deeper, darker. Tomlins cautioned, "ultimately, totalized contingency is a deeply tragic form of subversion, for it does not discriminate in the paralysis it [metes] out. In undermining the authority of all narratives, it spares none, even those that may be most precious to the powerless, those whom we once desired to liberate."

Lowe herself draws a more ambivalent conclusion from this state of affairs, finding positive as well as negative possibilities in it. It seems like mostly good news to me. Unyoking the critical historical project from any particular political valence or mission, other than "contingency and indeterminacy," creates the possibility of all kinds of interesting critical and reconstructive work from a variety of political perspectives. Those may include conservative, religious, and illiberal ones, as well as the more conventional academic-left perspectives. This is how I read Steve Smith's valuable historical and theoretical writing on law and religion, which I have called an excellent example of "Conservative Critical Legal Studies." On the whole, this seems like an obviously positive development.

Regardless, Lowe's article is interesting, clean and clear, and a good source for key writing in the field of American legal history in the past 16 years. I recommend it enthusiastically.  


Posted by Paul Horwitz on November 18, 2014 at 08:23 AM in Paul Horwitz | Permalink | Comments (1)

Tuesday, November 11, 2014

Jotwell Anniversary Conference Papers on Legal Scholarship

I have been associated with Jotwell for some time now as one of the editors of the constitutional law section. I continue to find it a good site with a worthwhile mission. Jotwell just had its fifth anniversary, and held a conference--"Legal Scholarship We Like and Why it Matters"--to mark the occasion. Whether and why legal scholarship--indeed, most scholarship in most disciplines--matters continues to provoke animated debate and discussion. I think it does, although I think there is nothing wrong with asking how much it matters, and how much of it, or of what kind, we should subsidize. Good answers to the latter questions might inform my own work, or my institutional decision-making as a faculty member; I doubt, however, that any answer to the first question would much influence my first-order decision to engage in scholarship.

In any event, the conference papers address not only whether or why scholarship matters, but a variety of other questions: how to do it better, how to count it better and whether to count it at all, how to distribute it, and so on. The papers look very interesting and delightfully brief. They can be found here

Posted by Paul Horwitz on November 11, 2014 at 01:37 PM in Paul Horwitz | Permalink | Comments (0)

Monday, November 10, 2014

Sepper on Hobby Lobby

I'm pleased that my paper "The Hobby Lobby Moment" is finally out in print. I hope readers will find it interesting. For those in my field of law and religion, I'm also happy to recommend this fine comment on the Court's recent decision in Town of Greece v. Galloway, which argues that the case "highlights the deep divisions among the Justices on a central question underlying the Establishment Clause: what the government is required to do, or even permitted to do, to accommodate religious pluralism in an increasingly diverse society."  

Mostly in this space, I want to commend to readers Elizabeth Sepper's response to my article on Hobby Lobby, titled "Reports of Accommodations' Death Have Been Greatly Exaggerated." I haven't read it fully yet, and I'm sure that we'll see things rather differently, but I have always benefited greatly from her work on health care and conscience. From the introduction:

I agree with Horwitz that the contraceptive controversy destabilized our social and legal consensus. Horwitz, however, mistakes what that consensus was and misidentifies the cause of its collapse. In this Response, I argue that the consensus has long been against granting religious exemptions from generally applicable laws to commercial entities and to for-profit corporations in particular. Instead, our consensus favors equal citizenship of individuals and, as a result, limited rights for powerful commercial actors. The Hobby Lobby moment threatens this consensus.

I further propose that while the marriages of same-sex couples may have added fuel to the fire, it was the union of religious and economic conservatives that threw the marketplace into flux. Their religious-libertarian arguments persuaded the Court to extend accommodations into the commercial sphere in an unprecedented and potentially expansive way.

Posted by Paul Horwitz on November 10, 2014 at 12:48 PM in Paul Horwitz | Permalink | Comments (0)

Friday, November 07, 2014

Weekend Reading: The Hobby Lobby Moment

Here's an abstract of my latest piece on SSRN, "The Hobby Lobby Moment." The final version should be published and posted on the law review's website soon and I will provide links when that happens. Enjoy.

American religious liberty is in state of flux and uncertainty. The controversy surrounding Burwell v. Hobby Lobby Stores, Inc. is both a cause and a symptom of this condition. It suggests the unsettled nature of one of the central elements of the church-state settlement: the accommodation of religion. Beyond that, Hobby Lobby -- both the Supreme Court decision itself, and the public controversy that has surrounded the contraception mandate litigation -- raises a host of other issues: the interpretation of the Religious Freedom Restoration Act, the status of reproductive rights, the disputed relationship between religious liberty and LGBT rights, and the changing nature of the commercial marketplace. More broadly, the Hobby Lobby controversy says much about the relationship between law and social change. 

This article explores these issues. Although it analyzes the opinions in the case, its primary focus is on Hobby Lobby as a "moment": as a stage in the life-cycle of both church-state law and the social and legal meaning of equality. An analysis of the "Hobby Lobby moment" suggests that the legal and social factors that turned a "simple" statutory case into the blockbuster of the Term lay largely outside the four corners of the opinion itself. The Hobby Lobby decision speaks to these larger controversies but does not resolve them. 

After examining the legal dispute and the decision in Hobby Lobby, this article discusses the legal and social sources of the controversy that surrounded it. Legally, it finds a rapid dissolution of consensus around a key aspect of church-state law: the accommodation of religion, which has become a foregrounded subject of legal and social contestation. This contestation has been driven or accompanied by significant social change of various kinds. The article focuses on two areas of social change that figure prominently in the Hobby Lobby moment. First, although the Hobby Lobby decision itself involved an important social issue -- women's reproductive rights -- I argue that the larger controversy surrounding the case had much to do with the rise of LGBT rights and same-sex marriage and their relationship to religious accommodation. Second, I argue that the controversy involved changing views concerning the nature of the commercial marketplace itself. The paper concludes with some observations about what the "Hobby Lobby moment" teaches us about the relationship between law and social change. 



Posted by Paul Horwitz on November 7, 2014 at 12:10 PM in Paul Horwitz | Permalink | Comments (0)

Amendment One, Alas

I'm grateful to Michael for his post on Amendment One, the Alabama anti-foreign/religious law amendment. As he notes, I wrote a couple of editorials that were published in a number of newspapers and other forums in the state, urging voters to reject this amendment. At best, in my view, the foreign/religious law piece of the amendment (there is also a full-faith-and-credit provision, one that appears to be aimed at the recognition of same-sex marriages, but I did not focus on that provision) simply repeats existing law, and so was quite unnecessary. Passing an unnecessary amendment was actually worse than unnecessary, however, because this governor and administration have been adamant about saying that they would focus on the economy, not symbolic or culture-war issues. To the extent that the new law requires even a small expenditure of money to achieve a redundant purpose, it runs contrary to their stated agenda and was the opposite of a conservative measure.

At worst--who knows? Every new law contains ambiguities. This law was not especially carefully drafted and certainly contains more than its share. And, as Michael points out, there is the chance--it has happened in at least one state with a somewhat similar law, and the same idea seems to be reflected in the case he discusses--that courts will take this narrowly worded amendment and interpret it expansively and dangerously. On its face, the amendment suggests that only a particular provision of, say, a contract, will be voided if it violates public policy. But a court might cite Amendment One as a basis to refuse to enforce a perfectly reasonable foreign or religious law provision on the basis of general concerns about the fitness of the foreign or religious legal regime. Since some such provisions--those requiring husbands to grant a get, for instance--are actually protective of the potentially disadvantaged party, this would give us bad results that wouldn't be required under current law.

There is very little good news about the passage of this amendment. But there are two glimmers of hope. The first is that the measure was loudly and clearly opposed by a variety of faith groups--predominantly black and predominantly white, evangelical and non-evangelical, and politically conservative and liberal. I was hoping that the opposition of the Christian Coalition, for example, would be enough to fracture the reflexively conservative vote in this state and kill the amendment. It was not to be. But it is a positive thing that these groups opposed the amendment. They understood full well that the intended target of the measure was Islamic law, and still opposed it.

In that sense, as I wrote in this paper, this is an important effect of decisions like Larson v. Valente, which erects a bar against sectarian preferences in laws burdening religion, and which was relied on by the Tenth Circuit in striking down the first-generation anti-sharia amendment in Oklahoma. A legislature that cannot aim its laws at a particular sect is faced with the choice to either drop the measure or to apply it to everyone, regardless of which sect they belong to. That creates political coalitions among the faithful, so that, say, the Christian majority is willing and eager to band together with the Muslim minority to oppose the generally applicable law. That's what happened in Alabama. Although it wasn't enough, it was still a pleasure to see. 

The other aspect of this episode that offers some small cause for optimism is that Amendment One was at least a second or third generation form of anti-sharia law. To avoid the problems of earlier generations of anti-sharia laws, such as Oklahoma's, it aimed at every religion and at all foreign law. And, precisely because it did so and its drafters understood that actually banning the enforcement of all foreign and religious law would be a terrible idea, the bill went one step further: It made itself basically redundant and toothless. The law does not forbid the application and enforcement of foreign or religious law altogether. It only bans their use when they would violate state or federal constitutional law. That means that, in most cases, an agreement that refers to Islamic (or Jewish, or Swedish) law can still be applied and enforced in Alabama today, just as it could before this unnecessary amendment was passed.

As both Michael and I recognize, the law might be enforced incorrectly and badly. If interpreted correctly, however, it will turn out to be so much excess verbiage. Amendment One is still stupid and dangerous, and its only apparent purpose was as a get-out-the-vote measure. But it may also demonstrate that the Constitution has worked with respect to anti-sharia laws, even if some version of those laws continues to be politically successful. In order to avoid having these laws struck down, the supporters of anti-sharia and anti-foreign law measures have had to turn them into mostly empty exercises. Thank God for that.    

Posted by Paul Horwitz on November 7, 2014 at 12:05 PM in Paul Horwitz | Permalink | Comments (0)

Friday, October 24, 2014

"It is a book you will not be able to put down often enough."

I was not favorably impressed by Bruce Allen Murphy's recent biography of Antonin Scalia, Scalia: A Court of One. It was certainly a substantial labor, but in my view not a successful one as a matter of either substance or style. My review of the book is finally out in Commonweal. I note that Commonweal, which is currently celebrating its ninetieth birthday, is currently providing free access to the entire site for registered readers.

A number of people were struck by how favorably the book was treated in some early reviews by liberal writers, despite what I consider its highly evident flaws. (By no means all of of the liberally inclined reviewers praised it, to be sure.) It was also the target of enthusiastic evisceration by conservative writers, albeit there was much more basis for those criticisms. I suggest in the review that there are in fact two or three sound basic points in the book, but those points are not new. And

[w]hat’s new, alas, is not useful. Murphy['s book] is full of opinions and speculations. The opinions are conventional, the speculations tendentious. They’re easy to spot, at least: you know you’ve reached the end of the record and the beginning of fanciful speculation when the footnotes suddenly vanish. There are countless examples of overconfident speculations that quickly become treated as fact, and of downright questionable conclusions. 

I conclude:

Whether Scalia: A Court of One is good or bad, fair or not, has been largely irrelevant [to a number of early reviews and discussions]. What matters is the occasion the book provides for liberals to come together in gleeful disdain for their stock villain, or for conservatives to gather in joyful defense of their hero. They’ve relived the Scalia controversy rather than reviewing the book. An experienced judicial biographer, Murphy has chosen well and labored hard—but in vain. 

Enjoy. And be sure to read Justin Driver's excellent review of the book in The New Republic, whose "back of the book" continues to delight.  

Posted by Paul Horwitz on October 24, 2014 at 11:31 AM in Paul Horwitz | Permalink | Comments (0)

Con Law Offerings at AALS This Year

The panels in and around constitutional law at the upcoming AALS annual meeting are pretty impressive this year. Here's the AALS promo, with links to the panel descriptions and lineups. I was slightly involved in the Law and Religion program, which I think is extremely timely, has a great list of speakers, and will be well worth attending, for people interested in equality as well as those interested specifically in law and religion issues. And I look forward to catching the Fish-and-Posner Show. 

The AALS Annual Meeting includes many sessions exploring important topics of constitutional law, legislation, federal courts, federal regulation, politics, equality, interpretation and history. 
Here is a sampling of programs being presented: 

Posted by Paul Horwitz on October 24, 2014 at 11:15 AM in Paul Horwitz | Permalink | Comments (0)

Sunday, October 19, 2014

An Op-Ed on Alabama's Amendment One

Here's an op-ed from the local paper, the Tuscaloosa News, discussing a state constitutional amendment that is on the Alabama ballot next month. That amendment, which bars the application or enforcement of "foreign" law (including religious law, and indeed the history of this provision suggests it is just a next-gen anti-Sharia law) in highly limited circumstances--circumstances that I argue are already covered by current law, rendering this law redundant at best--can be found here. More background on the amendment can be found at Ballotpedia. Comments are welcome, and more detailed inquiries via email are also welcome. Enjoy. Here's the opening paragraph:

Normally, when legislatures do foolish things, at least they do them on their own. But sometimes they ask for our help in being foolish. Alabama's Legislature has done so this year by putting Amendment One on the ballot in this November's election. We should decline the invitation.

Posted by Paul Horwitz on October 19, 2014 at 02:09 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, October 15, 2014

Reposted: "Interview Tips . . . For Faculty"

Following up on Zak's post below, I'm reprinting a post I put up some four years ago, back in the springtime of my blogging years. It asks what interview tips we might give to interviewers, rather than candidates, at the faculty hiring conference. I have not reexamined it and I don't know what I would, on further reflection, change about the advice; I offer it for whatever it's worth and not as a statement of my current views. The original post is here and there were some useful comments on it; I'm in transit today and have closed comments on the current post. And, of course, interviewers looking for something to read on the plane to DC might print out and read Martha Nussbaum's sobering article Cooking for a Job: The Law School Hiring Process.  The post follows:

* * * * *

It's just about meat market time again, and as always the interwebs are filled with advice for candidates, including recent posts here and at the Faculty Lounge.  Perhaps it's time we change focus a little by asking what interviewing tips we should offer to hiring committees.  Having been through the process, most of us are perhaps a little able to offer some suggestions about what interviewers at the meat market ought to do or ought not to do, both for the sake of a friendly interview and for the sake of a successful hiring process.  I welcome suggestions, although I'll start things off with a few tips of my own.

1: Be on time.  We always tell candidates to knock politely then wait patiently.  But what's good for the goose is good for the gander.  In a room with six or more people, surely someone is capable of keeping his or her eye on the clock and keeping things moving.  It seems discourteous to make interviewees wait.  This includes the hour after lunch; if your 1 o'clock candidate can make it back in time, so can you.  (Conversely, candidates, keep an eye on your own watch; if the interview is over, I know you may want to linger as long as the faculty want to keep chatting with you, but have some consideration for the next person waiting and politely make your excuses.  "I'm sorry, but I've got to interview with Yale in a minute" is a good exit line.)

2: Have something specific to say about your school.  Candidates are often told not to ask boilerplate questions about the law school they are interviewing with -- to have done some studying and have pertinent questions to ask.  Again, the same thing should be true the other way around.  Telling a candidate that you have a fine, collegial environment with lots of support for teaching and scholarship is like a law firm telling you they have excellent work and a friendly environment: it may (or may not) be true, but it's not very helpful.  Have answers ready about what actually distinguishes your school (if anything -- it's not clear that there's always a really great answer to this question), what specific virtues it has and what challenges it faces and how it plans to meet them, what its five-year goals are, what the living environment is actually like (a selling point for many schools, in my view, including those outside the great cities, which can become commuter schools for students and faculty alike), and so on -- and make them as specific as you reasonably can.  You may not always want to be thorough in your disclosures, but be honest in what you do say and as candid as you can be.

3: Ask about the candidate's scholarship, not your own.  I suppose this could be two recommendations.  First, you should actually ask about the candidate's scholarship.  Law schools at the AALS are (or were -- I suspect it's no longer as true) divided between those that spend the whole half-hour asking about the candidate's job-talk and those that devote only a few minutes, if any, to that question.  I'm not entirely sure the former approach makes sense, but I'm sure the latter approach no longer does, since even teaching-oriented schools are increasingly hiring for scholarship.  So ask about it.  And don't use that portion of the interview to bloviate about your own work, or to judge it based on how it relates to your own work or, alas, your own politics.  (I was once asked at the meat market what the most interesting litigation I was working on at the time was.  It was my defense-side work on the slavery reparations litigation.  I do not believe some of the interviewing faculty were pleased with that answer.)

4: Don't ask questions you don't care about the answer to.  Every interview can run a little dry, and of course there will be some standard questions.  But don't just fill the time with useless questions.  They bespeak your own lack of imagination and suggest that you either don't care much about this candidate or don't care much about your own hiring process.  Ask engaged and specific questions and actually listen and respond to the answers.

5: Skip the "private" cocktail party. I think this one might divide opinion a little more.  Not every school does this, but several schools invite anywhere from a substantial number of promising candidates to all of their interviewees to a cocktail party.  Shy as I am, I suffered through a couple of these.  I tend to think they're a waste of time.  First, one feels obliged to attend, and the coerced nature of the attendance makes it sort of like...well, like a legal ethics class.  Second, it advantages the glibly social over the shy and quiet (a little personal bias here, I know), without telling anyone what kind of friend or colleague you'd actually be like.  Third, the more people you invite the less purpose there is to the whole thing -- except to demonstrate that you can make people who want an offer dance to your tune.  Just skip it, and if you want to get to know a few candidates better, have a small dinner for them.

6: If you have a room for alumni candidates, be there.  Schools with large numbers of alumni applicants often reserve a room to host those alumni and give them a place to kick back between interviews.  I think this is a great idea, and I'm grateful to my alma mater, Columbia, for doing so.  If you're going to do this, it might also be helpful to make sure you have some faculty members there, or at least a relevant dean, to offer advice and feedback to the candidates if they want any.  (Columbia did a good job on this, as I recall.)  

7: Clean up after yourself. Hotel rooms can come to look like, well, hotel rooms over the course of a day.  Keep the room professional.  Put away all the used glasses between interviews, keep the bathroom fresh, and so on.  

8: Be discreet. That candidate waiting outside the door for the next interview can hear you assessing the virtues and flaws of the last interviewee.  Be quiet and discreet, in the room and in the hallways or elevators; save up most of your comments for debriefing sessions.  Personally, it also drove me a little nuts to be waiting outside while the last interview ended on an uproarious note of laughter, but I'm not sure I could enforce any relevant rule on that score.  

Posted by Paul Horwitz on October 15, 2014 at 09:28 AM in Paul Horwitz | Permalink | Comments (0)

On Houston's Broad Supboena [UPDATED]

Eugene Volokh has a good post on developments in litigation in Houston around that city's equal rights ordinance. The only report I've seen so far from a mainstream outlet is this Houston Chronicle story, which reports in part:

Opponents of the equal rights ordinance are hoping to force a repeal referendum when they get their day in court in January, claiming City Attorney David Feldman wrongly determined they had not gathered enough valid signatures to qualify for the ballot. City attorneys issued subpoenas last month during the case's discovery phase, seeking, among other communications, "all speeches, presentations, or sermons related to HERO, the Petition, Mayor Annise Parker, homosexuality, or gender identity prepared by, delivered by, revised by, or approved by you or in your possession."

Of course a good deal of the reporting on the development is from partisan outlets and should be read, if at all, with caution (a number of headlines out there, for instance, talk about Houston seeking "oversight" of sermons and so on).  But while I would want to know more, I find the Chronicle report and the language quoted in it troubling on its face. Better than having to rely on overheated sources (including the press release by the ADF, which is involved in the case) would be more mainstream media coverage of this request, which I think certainly deserves it. 

With his typical indefatigability, Eugene has already worked up a decent chunk of First Amendment analysis and concludes that the precedents don't incidate some pre-existing slam-dunk First Amemdment argument. Based on a brief search last night, I concur, although I would be happy to hear from others. Another  case one might want to look at is the Ninth Circuit's opinion in White v. Lee, 227 F.3d 1214 (9th Cir. 2000). There are definitely distinguishable facts and I am not suggesting the case is on all fours, but it may provide useful additional reading. In that case, the court examined a HUD investigation of some neighbors who opposed the conversion of a nearby motel into a multi-family housing unit. HUD "questioned the neighbors under threat of subpoena about their views and public statements regarding the challenged project; directed them to produce an array of documents and information, including all involved parties' names, addresses and telephone numbers and all correspondence or other documents relating to their efforts in opposition to the project"; and so on. The panel, per Judge Reinhardt, stated:

The investigation by the HUD officials unquestionably chilled the plaintiffs' exercise of their First Amendment rights. It is true that the agency did not ban or seize the plaintiffs' materials, and officials in Washington ultimately decided not to pursue either criminal or civil sanctions against them. But in the First Amendment context, courts must “look through forms to the substance” of government conduct. Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 67, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Informal measures, such as “the threat of invoking legal sanctions and other means of coercion, persuasion, and intimidation,” can violate the First Amendment also. Id.8 This court has held that government officials violate this provision when their acts “would chill or silence a person of ordinary firmness from future First Amendment activities.” Mendocino Environmental Ctr. v. Mendocino County, 192 F.3d 1283, 1300 (9th Cir.1999) (citation omitted). Here, the type of investigation conducted and the manner in which the individual defendants carried out their functions more than meets that standard.

But while the churches' argument that Houston's conduct constitutes a clear First Amendment violation is at least open to question and we can discount some of the more hysterical rhetoric, I think it is entirely reasonable to be disturbed by the breadth of the discovery request, and to think of it as, so to speak, touched with First Amendment concerns. Certainly, after a decade and a half of rhetoric about various aspects of governmental investigative conduct, whether federal or local, being designed to "intimidate" or "suppress" political dissent or activism, much of which I found overstated but hardly without any basis, this story at least deserves to be approached by the same individuals with the same sorts of concerns. And certainly people have raised concerns about similar uses of other investigative techniques in other cases, such as when Slate and other outlets wrote about the freedom-of-information request aimed at Professor Douglas Laycock, whether they thought those requests raised direct First Amendment concerns or not.

At a minimum, I think, the court should examine the request skeptically and demand strong reasons for its breadth and for some of the specific requests made by the city; the mainstream news media should dig further into the story and demand fuller explanations from the city for its conduct (the city declined to comment for the Chronicle story); and the city should be subject to public criticism. Again, I'm happy to hear from others.     

UPDATE: With thanks to Eugene for the link, here's an update. Quoting from the story:

[I]n a breaking development Wednesday, Houston Mayor Annise Parker appeared to be backing away from the initial requests. Janice Evans, a city spokeswoman, told Law Blog in a statement:

Mayor Parker agrees with those who are concerned about the city legal department’s subpoenas for pastor’s sermons.  The subpoenas were issued by pro bono attorneys helping the city prepare for the trial regarding the petition to repeal the new Houston Equal Rights Ordinance (HERO) in January.  Neither the mayor nor City Attorney David Feldman were aware the subpoenas had been issued until yesterday.  Both agree the original documents were overly broad.  The city will move to narrow the scope during an upcoming court hearing.  Feldman says the focus should be only on communications related to the HERO petition process.



Posted by Paul Horwitz on October 15, 2014 at 09:18 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, October 11, 2014

The Relationship Between Scholarship and Advocacy

This is a pet interest of mine and is fairly well covered and debated in the latest issue of the University of Illinois Law Review in the context of the ACA litigation (h/t: Andy Koppelman). From the relevant page of the Law Review website:

Issue 4 next presents 5 essays responding to Professor Hyman’s article “Why did Law Professors Misunderestimate the Lawsuits against PPACA?” Professors Ramseyer, Blackman, Blumstein, Mazzone, and Koppelman all contribute to this discussion on the Affordable Care Act. The final article, by Professor Hyman responds to and summarizes the foregoing discussion.

Without completely endorsing it, I particularly recommend Jason Mazzone's piece, Obamacare and Problems of Legal Scholarship. (I think that, by way of background, Part IV of Josh Blackman's piece is also useful. I find myself rather skeptical that Ramseyer's piece is as persuasive, with all due respect. It relies on general rather than field-specific data, often rather old data, and not necessarily the most relevant data, and then engages in rather broad, non-field-specific speculation by way of explanation.)

I quoted part of Jason's article on my FB page and got some interesting responses. Let me quote him more fully here, placing in bold the text that provoked the responses I got elsewhere, and see what comments result. The passage addresses an op-ed Jason wrote fairly early in the ACA litigation suggesting that the Commerce Clause arguments in the litigation might have greater purchase than early academic skeptics were suggesting:

[T]he reactions I found most curious came from fellow law professors. Almost without exception, the professors who contacted me (or who wrote responses in other settings) expressed bewilderment, disappointment, even anger that in my op-ed I had “endorsed” the Commerce Clause challenge the plaintiffs were making to the individual mandate. I had, of course, done no such thing. All the op-ed did was explain why I thought the plaintiffs’ Commerce Clause arguments would have greater traction than other commentators were predicting and that a success for the government at the Supreme Court was far from certain. No matter. To the academics who responded to my op-ed, my analysis was actually advocacy. That meant I was on the wrong team.

The lessons Professor Hyman draws from the PPACA episode go to the future role (or not) of professors in predicting case outcomes. I offer a different conclusion, one that concerns professors not as predictors but as scholars—the role we are actually meant to be playing. The failure of constitutional law professors to distinguish between advocacy and analysis is not confined to the PPACA episode I have described. Rather, this failure is commonplace.

I won't quote my FB interlocutors, although some or all of them graciously gave me permission to do so, in part because I'm not going to reprint or do justice to their responses here. In very brief summary, the responses centered around the idea that scholarship, especially in our field, just is advocacy; that this can be productive; and that one must parse the purposes that legal scholarship might serve more carefully before rendering too sweeping a judgment.

I think the last point is a good and important one. It does not, however, answer questions about what professional or normative considerations we should draw for particular types of scholarship serving different sorts of purposes. I am less in agreement with the first two points. And I doubt that any of these points would justify a scholar expressing "disappointment" that a scholar had "endorsed" or given traction to some legal argument because he wrote an op-ed pointing out that this argument might actually have traction on the courts. 

I do have some caveats about Jason's piece. I think the present-tense-oriented nature of his piece, which concludes that "something may be wrong--very wrong--within the [legal] academy itself," assumes too readily that the mixture of legal scholarship and legal advocacy, and the problems it creates, is of recent vintage and not a long-standing issue. I think his comparison to other fields is problematic, both because 1) as I noted above, we should do more careful thinking about the purpose and function of scholarship in our field in particular and be careful in assuming that particular comparisons are appropriate, and 2) we should be cautious about assuming no such problems exist in other fields, especially in the humanities and social sciences, or that they are properly dealt with there.

That said, I think the sentences from Jason's piece quoted in bold above have a strong basis in fact and do present cause for concern. Rather than come up with absolute condemnations ("all legal scholarship is political crap," "the left has ruined serious legal scholarship," or what have you) or absolute rules barring law professors from doing both things, I do think we need to think much more seriously, publicly, and collectively about what a proper ethics of the dual scholar/advocacy or scholar/activist role entails. I think it would make a proper occasion for a print and/or live symposium, AALS panel, or (God help me) white paper of some sort.    

Posted by Paul Horwitz on October 11, 2014 at 09:59 AM in Paul Horwitz | Permalink | Comments (20)

Thursday, September 25, 2014

How to Save the World Without Being Happy or Virtuous?

It was not surprising that an op-ed in the Harvard Law Record recommending that fledgling graduates of schools like Harvard "save the world by working in biglaw" would provoke some attention and reactions. Paul Caron has links to that op-ed and some responses that ran in the Crimson. At Above the Law, the more or less inimitable Elie Mystal has a forceful if not especially cogent response as well. I am somewhat more sympathetic to the initial piece, although that does not constitute a complete endorsement. 

Mystal's response is somewhat illustrative of what I think is the rather confused reaction that met the piece. That piece argued--without factoring in whatever social utility is provided directly by working in a big law firm itself--that working in BigLaw is the "greatest utility maximizing option" these students have, because they could simply donate 25 percent of their income to worthy causes, and that the good done by this would outweigh the good done by working directly and less remuneratively in lower-paying public service jobs.

Mystal made two arguments. First, and quite rightly, he pointed out that is is unlikely in the extreme that "any Biglaw associate, anywhere, who is going to give away 25% of their post-tax salary." True enough! But he makes his first error here, writing style aside. The question posed by the op-ed writer is not whether current BigLaw types would donate a quarter of their income to worthy causes; it is whether the kinds of people who normally work in public interest law would donate a quarter of their suddenly vastly expanded salary to such causes. There are perfectly good reasons to think that this too is unlikely. Just because you want to do public interest work and are sufficiently dedicated to doing so to take a lower-paying job, that doesn't mean you are going to give away a quarter of a large salary if you actually get that salary. I assume at least some of those people would, naturally enough, buy condos, pay down their debt faster, take vacations and/or gather the beginnings of a nice wine cellar, lease high-end luxury hybrid SUVs, and so on. Nevertheless, one would think on Mystal's logic, or that offered by other critics of the op-ed, that if the kinds of people who do public interest law took BigLaw jobs for the express purpose of dedicating more of their income to charitable giving, those people would be more likely to do so.

Ah, but would they be happy? Would they be fulfilled? Would they be decent people? That's the second point of Mystal's rebuttal, more or less, and it is a theme that runs through the Law Record rebuttals as well. Thus, one writer acknowledges, "I love my work and being engaged with causes I care about makes me happier. This does not reduce or demean the impact of the work I am involved in. For those who have the all the choices of employment at their fingertips, we should all graduate into employments we love. With all the choices in the world, I also hope we’ll choose well – taking seriously the power society has handed us because of our degrees and profession." And Mystal, presumably having done some research or reporting on this question, talks a bunch about how "people who actually care about the public interest...think." One friend made what I thought was a better, more subtle version of this argument, suggesting that it matters that people do intrinsically virtuous things, regardless of the net social benefit to others.

My reading of the initial op-ed is that its basic answer to these lawyers is, "But why should I care about you?"...

... The writer was making a strictly utilitarian argument, with a focus on maximizing overall social utility. More specifically, I think, his implicit focus was on maximizing the well-being of the poorest and most suffering among us, since he did not bother to account at all for any possible utility increases stemming from working for a corporate law firm itself. He was not arguing that the would-be public interest lawyers would be happier or more fulfilled or more decent people if they took his recommendation. And, really, under that set of assumptions why should he, or we, care that much about that? If we're erecting a utilitarian argument aimed at increasing the well-being of the least among us, the fulfillment and virtue of elite law school graduates should be, with one or two caveats, irrelevant. What we want to know is whether more people in need will do better, not how the people who already have those opportunities will feel about themselves.

Of course, most of us are not utilitarians. Mystal's current job certainly indicates he is not. So does mine. I once heard a law professor say, fairly earnestly, that they wrote legal scholarship "to change the world." That seems unlikely, and from a utilitarian perspective even more doubtful; probably the welfare of others would have seen a net improvement if this scholar--whose work is excellent and has my full respect--had quit the legal profession altogether and become a social worker. I assume that person, like most of us--like me--writes because writing brings him or her a great deal of personal satisfaction, and will stick with it even if it becomes clear that his or her suggestions for legal reform will bear no fruit at all. I assume personal satisfaction is one reason that graduates with substantial opportunities (a limited set of individuals, to be sure, but the discussion took place in the Harvard Law Record) take jobs in big law firms. And, of course, I assume people take public interest jobs when and because it will be most satisfying to them personally.* 

Without rendering judgment on whether any of this is right or wrong from an absolute moral perspective, it is certainly entirely natural. But it is worth emphasizing again that these factors are just not things the initial author cared about. Unlike Mystal and most of the other people who responded, the only thing the author cared about was easing the suffering of others. If that's our only concern, it's perfectly reasonable to ask whether we--or those people who purport to care primarily or exclusively about alleviating misery and helping others--would achieve better results by giving large amounts of money to others than by taking fulfilling, satisfying work in that area.

Whether that scheme would work is a different question, although it's a perfectly reasonable general question to raise for those contemplating future jobs. The personal happiness and satisfaction of these elite law graduates should not matter much to those of us who truly care about the poor and suffering, to be sure; but we would have to calculate how likely it would be that they would stay in those jobs and/or continue donating if they were sufficiently unhappy in their work. But that's a very different kind of calculation than asking about satisfaction, or what people who care about the public interest think about the world, for its own sake. 

Incidentally, while I ultimately am not convinced by the initial op-ed writer's "proposal" (which was really nothing of the sort--it was simply a suggestion that those privileged persons thinking about their future work take a strictly utilitarian approach to that question), I do think that big law firms should get almost entirely out of the business of doing pro bono work directly, with a few exceptions in areas where their existing skill sets would actually render them highly qualified to do that work, and instead mostly pay other, more qualified and dedicated lawyers to do their pro bono work for them. It's true that it won't help the happiness, job satisfaction, or cognitive dissonance reduction of the people who work at those firms. I just don't see why we should care about that all that much compared to doing good for others.

* A side-note: One of the response writers in the Law Record writes: "Even where my work gives me meaning, the emotions I feel while engaging with the world are far from the 'warm and fuzzies' the author assumes adequately compensate me (and equally qualified, intelligent, hardworking classmates) for my work. In fact, in my opinion, when you work with marginalized communities, you are reminded every day how unjust and unfair and disempowering our system is. This does not make me feel warm and fuzzy, but rather pretty angry and upset." This is an interesting addendum. But it does not take into account the degree to which many or most of us--all of us, if Facebook is any indication--derive substantial personal satisfaction from being angry and upset. I assume that for many young lawyers, being angry and upset at injustice is in fact one of the positive factors to be weighed in their individual utility calculus.

Posted by Paul Horwitz on September 25, 2014 at 10:10 AM in Paul Horwitz | Permalink | Comments (7)

Inazu, "Institutions in Context"

John Inazu has a new review up on SSRN of my book First Amendment Institutions. (Incidentally, it makes a fine Rosh Hashanah present.) It is supportive of the general institutional project but carefully critical of some important aspects of its implementation in the book. I am grateful to John for reading it, which places him in a small select club, and for his thoughtful remarks. Here's the abstract:

This review of Paul Horwitz’s First Amendment Institutions applauds Horwitz’s call for us to take institutions and their contexts seriously.  Horwitz shows why “acontextual” First Amendment thinking and doctrine lead to rigid formalism and missed opportunities.  He enhances his argument with four nuanced chapters on specific institutions: universities, presses, churches, and libraries.  These chapters bring to life our diverse institutions and their differences.  It is less clear whether the descriptive differences that Horwitz highlights warrant the doctrinal differences that he advocates.  In other words, even if Horwitz is right to call our attention to institutions, do his observations translate to First Amendment doctrine that can meaningfully distinguish between them?  I turn first to pressures internal to Horwitz’s institutional categories by focusing on two of his core examples: universities and churches.  I then examine Horwitz’s chapter of associations and suggest broader implications than he acknowledges.  I conclude by offering a different way to parse Horwitz’s argument: embracing his institutional distinctiveness within the time-honored public-private distinction that he rejects.

Posted by Paul Horwitz on September 25, 2014 at 09:21 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, September 11, 2014

Still (Unvaccinated) in Hollywood

This is off-topic for me, but  I found this lengthy piece in the Hollywood Reporter, suggesting that LA's Westside is experiencing a significant increase in non-vaccinating (or departing from standard vaccination schedules) very interesting. Given its audience, one can understand why the story gives so very much time to vaccination skeptics in the piece, although I think it went overboard on this. Probably the most interesting and dispiriting quotes in the story are those from some of the school administrators, who, it is not hard to discern, would do anything but offend some of their clientele. (That's not universally true; a couple of administrators are fairly straightforward in their concern.) In any event, it's an interesting article.  

Posted by Paul Horwitz on September 11, 2014 at 09:54 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, September 10, 2014

Boston University Law Review Symposium on Dworkin's "Religion Without God"

The Boston University Law Review in recent years has done a superb job of running symposia on new and important legal books. Many of us have lamented the decline in the number of book reviews in legal periodicals, a decline that has corresponded to a rise in the number of books published by law professors in the last decade or so. BU has filled that gap admirably, and sparked some terrific conversations as a result. 

The new issue of the Boston University Law Review has two such symposia, on three different books. I was delighted to be rather distantly involved in one of those, a print symposium on the late Ronald Dworkin's book Religion Without God. The symposium can be found here. Notwithstanding my own contribution, it's really a stellar gathering, thanks to the work of Professor Jim Fleming, and I found the pieces well worth reading. The table of contents follows:

Volume 94, Number 4 – July 2014



Introduction to the Symposium on Ronald Dworkin’s Religion Without God James E. Fleming Page 1201

Religion Without God by Ronald Dworkin – Review Jeremy Waldron Page 1207

The Challenge of Belief Stephen L. Carter Page 1213

“A Troublesome Right”: The “Law” in Dworkin’s Treatment of Law and Religion Paul Horwitz Page 1225

Ronald Dworkin, Religion, and Neutrality Andrew Koppelman Page 1241

Dworkin’s Freedom of Religion Without God Cécile Laborde Page 1255

Can Religion Without God Lead to Religious Liberty Without Conflict? Linda C. McClain Page 1273

Religion, Equality, and Public Reason Micah Schwartzman Page 1321

Is God Irrelevant? Steven D. Smith Page 1339


Posted by Paul Horwitz on September 10, 2014 at 04:57 PM in Paul Horwitz | Permalink | Comments (2)

Thursday, September 04, 2014

In a Different Voice

Just a quick, basically neutral observation about the language of Judge Posner's opinion in Baskin v. Bogan: Unlike the language of many of the SSM opinions so far, it is virtually stripped of the kinds of terms and effects that crop up elsewhere. The word "dignity" appears exactly once, on page 38 of a 40-page opinion. At that, it appears in a quotation of another court, and only in passing. Similarly, the word "animus" appears just once, at page 27. Brown v. Board of Education, cited in at least three of the SSM cases so far, is absent; so is "segregation." If the opinion is forceful and effective, it nevertheless speaks in a different register than the one that many other judges writing in this area in the past few months have strained at achieving.    

Posted by Paul Horwitz on September 4, 2014 at 05:08 PM in Paul Horwitz | Permalink | Comments (11)

Thursday, August 28, 2014

Welcoming Back Jennifer Bard, and a Note

We're happy to welcome Jennifer Bard back to Prawfs. She is the Alvin R. Allison Professor of Law at Texas Tech University School of Law and an adjunct associate professor at the TTU School of Medicine.

Let me say as an aside that in the wake of our loss of our friend Dan, many old and new friends have stepped forward to serve as guest bloggers over the coming year. We're eager to keep what I think of as The House That Dan Built going and grateful that so many people are helping to maintain a fraction of the energy that Dan brought to this blog, along with everything else. And we are grateful to our readers as well.  

Posted by Paul Horwitz on August 28, 2014 at 10:16 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, August 27, 2014

ASU Aspiring Law Professors Conference

A quick note: ASU's annual aspiring law professors conference is coming up on Saturday, September 27. The keynote speaker this year is Paul Caron of Pepperdine. The conference announcement, which can be found here, includes the following description:

Designed for Visiting Assistant Professors, Fellows and others who plan to go on the academic teaching market, but valuable to anyone considering a career as a law professor.

  • Learn to succeed in the entry-level law teaching market
  • Obtain an insiders perspective on the appointments process from faculty with extensive hiring experience
  • Participate in a mock interview or mock job talk and gain feedback from law professors

I had the pleasure of speaking at the conference a couple of years ago. It's a well-designed and, I believe, helpful event. It will certainly help you if you're in the market; it may also help you decide whether you want to be in the market or not.  

Posted by Paul Horwitz on August 27, 2014 at 02:40 PM in Paul Horwitz | Permalink | Comments (0)

Bloom, "Against Empathy"

There has been a long debate in law about the role of empathy in judging, a debate that gained new prominence during and after the nomination of Justice Sonia Sotomayor. Those who are interested in that debate may enjoy a new essay in the Boston Review by Paul Bloom titled "Against Empathy." There are a host of responses, with a reply by Bloom. He defines empathy as "the process of experiencing the world as others do, or at least as you think they do." A couple of snippets:

I’ve come to realize that taking a position against empathy is like announcing that you hate kittens—a statement so outlandish it can only be a joke. And so I’ve learned to clarify, to explain that I am not against morality, compassion, kindness, love, being a good neighbor, doing the right thing, and making the world a better place. My claim is actually the opposite: if you want to be good and do good, empathy is a poor guide.

* * * 

Certain features of empathy make it a poor guide to social policy. Empathy is biased; we are more prone to feel empathy for attractive people and for those who look like us or share our ethnic or national background. And empathy is narrow; it connects us to particular individuals, real or imagined, but is insensitive to numerical differences and statistical data. . . . In light of these features, our public decisions will be fairer and more moral once we put empathy aside. Our policies are improved when we appreciate that a hundred deaths are worse than one, even if we know the name of the one, and when we acknowledge that the life of someone in a faraway country is worth as much as the life a neighbor, even if our emotions pull us in a different direction.

I encourage you to read the essay and the responses. I would note one pet peeve of mine about the empathy debate in law: the frequent, implicit assumption that empathy for the plight of another ought to entail legal victory for that claimant. I tend to believe that empathy is useful in judging, both because it may aid in understanding a claim and, sometimes, the wider effects of a legal ruling, and because it may enable the empathetic judge to speak more clearly and effectively to the losing side. But there is no necessary connection between feeling someone's pain and ruling in favor of his or her claim.    

Posted by Paul Horwitz on August 27, 2014 at 01:38 PM in Paul Horwitz | Permalink | Comments (5)

Tuesday, August 26, 2014

Checking in With the Episcopal Chaplain at Yale

The New York Times has this interesting letter to the editor today, responding to an op-ed from Deborah Lipstadt the other day about anti-Semitism in Europe. Without comment, I offer it in full:

To the Editor:

Deborah E. Lipstadt makes far too little of the relationship between Israel’s policies in the West Bank and Gaza and growing anti-Semitism in Europe and beyond.

The trend to which she alludes parallels the carnage in Gaza over the last five years, not to mention the perpetually stalled peace talks and the continuing occupation of the West Bank.

As hope for a two-state solution fades and Palestinian casualties continue to mount, the best antidote to anti-Semitism would be for Israel’s patrons abroad to press the government of Prime Minister Benjamin Netanyahu for final-status resolution to the Palestinian question.

(Rev.) BRUCE M. SHIPMAN Groton, Conn., Aug. 21, 2014

The writer is the Episcopal chaplain at Yale.


Posted by Paul Horwitz on August 26, 2014 at 09:38 AM in Paul Horwitz | Permalink | Comments (0)

Monday, August 25, 2014

Pity the Non-Donor

Eric Posner's recent co-authored article, An Empirical Study of Political Bias in Legal Scholarship, has attracted a good deal of attention. On his blog today, he writes an interesting follow-up, asking whether Republican law professors are cited more often than Democratic law professors and answering, "yes." He offers some speculations about why that might be. Intuitively, I tend to think the second reason he offers--"Because they must find someone to criticize in their papers, [liberal law professors] end up citing Republicans frequently. Citations by Republican law professors are divided among the larger pool of Democratic professors, so on a per capita bases the latter are less frequently cited than the former."--is more convincing than the other three possibilities he raises. But that's just intuition.

More interesting still, to me, is Posner's finding that "non-donors are cited less often than both Democrats and Republicans are." He speculates that "articles with a political bent attract a greater number of responses, and so professors who do not write them are less frequently cited." That hypothesis is quite similar, I think, to the explanation he ventures above about why Republican law professors are cited more often than Democrats.

Posted by Paul Horwitz on August 25, 2014 at 01:39 PM in Paul Horwitz | Permalink | Comments (2)

Friday, August 22, 2014

An Update on the "Satanic Black Mass" Story

For students of law and religion, not to mention the much larger audience that likes stories about replevin, the story about the planned Satanic "black Mass" at the Oklahoma City Civic Center Music Hall has been very interesting. Here are some updates about this controversy. In short, the organizer of the event has returned (or said he has returned) what he said was an authentic piece of the Catholic host that he intended to use at the Mass. The story quoted at the MoJ cite adds: "Archbishop [Paul] Coakley has made repeated requests for the city’s leaders to cancel the satanic ritual in a publicly funded facility. 'I have raised my concerns … and pointed out how deeply offensive this proposed sacrilegious act is to Christians and especially to the more than 250,000 Catholics who live in Oklahoma.'" I cannot help but wonder, on the basis of this and similar statements that he has made, what Archbishop Coakley's position is on the Bronx Household of Faith case.  


Posted by Paul Horwitz on August 22, 2014 at 12:16 PM in Paul Horwitz | Permalink | Comments (0)

Thursday, August 21, 2014

A Somewhat Interesting Question from a Terrible, Terrible Writer

At Slate, regular higher education writer Rebecca Schuman raises the question whether a professor should ever assign to students a book that he or she has written. Her answer: No, never! Except, yes, sometimes. And adjuncts probably should do so, because the mistreatment they receive matters more than the mistreatment that students receive.

I find the question an interesting one. But, I readily confess, I link to it here mostly to make publicly a point I've made more privately elsewhere: Rebecca Schuman is, by leaps and bounds, the worst writer on higher education I've ever read. That's not a critique of her views or her complaints about the university, only some of which are wrong. Nevertheless, taken on the whole, article for article, screed for screed, she is just awful--so consistently "love-to-hate" awful that I almost can't get enough of her work. This is not true for everyone--I wouldn't say it of Eric Jarosinski, for example--but in this case I would say that the fact that Schuman is leaving the academy for web journalism says far more about web journalism than it does about the academy. Nor does her regular column at Slate speak well for Slate, which used to be quite good.   

Posted by Paul Horwitz on August 21, 2014 at 12:09 PM in Paul Horwitz | Permalink | Comments (0)

Wednesday, August 20, 2014

Response(s) to Rick Garnett's Essay on Freedom of Religion and Freedom of the Church

As Rick noted here a while back, he has a piece up at the Liberty Law site on "Freedom of Religion and Freedom of the Church." There have been several interesting responses to it by Donald Drakeman and John Inazu. Here is my own, less interesting response. It was a pleasure to read and respond to Rick's essay.

Posted by Paul Horwitz on August 20, 2014 at 04:09 PM in Paul Horwitz | Permalink | Comments (0)

Does it Even Matter What Steven Salaita "Tweeted?"

I have followed with interest the various stories and blog posts about Steven Salaita. Although there are aspects of Mike Dorf's initial post on the subject that I am uncomfortable with, I agree with him that there are some possible differences between firing and not hiring an academic candidate. We shouldn't be sanguine about those differences; refusing to hire a candidate for the wrong reasons--not liberal enough, say, or too liberal--is also a dereliction of academic duty. And we should be very cautious about "collegiality," without treating it as irrelevant. But there are, I think, potential differences between the kinds of factors that are relevant at one stage and those that are relevant at another.

I agree that the Salaita case raises serious concerns about academic freedom. I'm less convinced by some of the confident descriptions of the process and its legal consequences, but I haven't read every document. To my surprise, moreover, I find some aspects of the argument that some of Salaita's tweets have been overread persuasive. (We should always be cautious about confidently assuming that some statement is really a "dog whistle," as long as it can be read otherwise. I find it unfortunate that this seems to be an inconsistently applied principle.) I should add that that's a far cry from admiring the heated, obnoxious rhetoric that Salaita seems comfortable with in his tweets. In my view, which admittedly may be an outlier, most academics should be embarrassed to tweet at all; and all of them should be embarrassed to tweet like that. (The post I link to promises to go on to demonstrate that "Nelson's authority to speak about Salaita's termination"--note the assumption--"is compromised." I assume that most of the serious critics of university's treatment of Salaita consider that part of the argument irrelevant, if not damaging to their arguments.)

What I'm moved to wonder is how relevant much of the later discussion has been. The letter to which Dorf is a signatory describes Salaita's tweets, in rather general terms, as "statements on a matter of public concern," as as the voicing of views on "complex matters of public concern," as "participat[ion] in a rich, and at times heated, climate of debate on the issue of justice in the Middle East," and so on. Some critics, such as Steven Lubet, have criticized the letter writers and others for "soft-pedaling the anti-Jewish sentiments in [Salaita's] tweets." In addition to pointing to the post I linked to earlier reading those tweets differently--which, as I said, I found somewhat persuasive--critics of that position have ended up in a lengthy discussion of Hamas, the situation in and around Israel and Gaza, etc. And I wonder: Does it matter?

As I understand the strongest statement of the position that has been offered, this is a matter of academic freedom, pure and simple. On this view, Salaita was fired, or refused a process that should have led to his employment, and not just "not hired." The firing was a result of the content and viewpoint of his speech on Twitter. That is a violation of basic principles of academic freedom. Salaita's hiring itself, based not on his tweets but on a review of his scholarship and, presumably, his teaching and service, indicate his suitability for the position. If that's the case, it seems to me that what Salaita said is basically irrelevant. Provided that he was engaged in a "rich, and at times heated," debate on "a matter of public concern," and that he was fired, in violation of academic freedom, for doing so, why should we care whether his tweets were anti-Israeli, anti-Zionist, offensive, or indeed anti-Semitic? The question should be (almost?) entirely irrelevant.

On this view, it does not matter--except for public relations purposes--that the letter writers offered a rather anodyne description of Salaita's tweets. Nor--except for public relations purposes--would it matter if the letter writers had written instead, "A number of critics have said that Salaita's tweets trade in anti-Semitic tropes and imagery, are indifferent if not gleeful about doing so, and are enthusiastic in displaying bloodthirstiness about the people he reviles. We don't care, and we're outraged that he was fired."    

It seems to me that if we take seriously the criteria applied by Salaita's defenders--and not without reason, if we care about academic freedom--it would hardly matter if Salaita had instead "tweeted" (leaving aside the question why grown-ups, let alone grown-up academics, bother with such an activity) any of the following:

"I'm beginning to think the Protocols of the Elders of Zion are right."

"One, two, a thousand Auschwitzes!"

"Obama is a traitor and a dictator. Time to exercise some Second Amendment remedies, NOW!"

"Maybe if the girls on campus dressed with decency and stayed off the booze, there would be fewer rapes at this school."

"If those monkeys in Ferguson want to burn down their own town, let them! Why waste the rubber bullets?"

Of course most people will find these statements objectionable. But that's hardly the point. They are, and the letter writers would describe them simply as, part of the rich climate of debate on matters of public concern. It's strange to me, then, how quickly the discussion in the comments has moved to questions about the nature and motivations of Hamas, whether it bears moral agency for the murders it commits, and so on. It should matter no more than it would matter whether Salaita, or some other academic, believed and argued that women's indecency and promiscuity is a major contributing factor to campus sexual assault, or that black criminality is a greater problem in Ferguson than police brutality. And, given that the real issue is one of academic freedom, the letter writers would surely be within their rights to describe one set of beliefs and arguments as abstractly as they describe any other. 

One last note: an interesting comment on the Faculty Lounge wrote, in response to a question whether it would matter if Salaita were, instead, a Grand Wizard of the KKK who concealed his membership until he was hired, "[T]here is obviously a fundamental difference between holding racist ideas and acting upon them, just as there is a fundamental difference between engaging in terrorist acts and expressing sympathy for them. No one would argue academic freedom requires hiring either a Grand Wizard or a terrorist." That may be right, but note that this response assumes that the question is one of hiring, not firing. That is not what the question to which he was responding said. Moreover, the position of Salaita's defenders, or many of them at least, is that Salaita was hired, and now is being wrongfully deprived of the academic job to which he is entitled. I assume the proper response in such a situation, at least according to the arguments I have read so far, is that, at least depending on the nature of the activites he engages in, of course a qualified academic who is hired for a position and who also turns out to be a vocal Grand Wizard of the Klan should not be fired for that reason. And of course a suite of responses to such a dismissal is required, including protest and, for some, a refusal to participate in any events at that university.  


Posted by Paul Horwitz on August 20, 2014 at 10:22 AM in Paul Horwitz | Permalink | Comments (15)

Monday, August 11, 2014

Epstein and Bagenstos on Title II

I have been reading a great deal this summer on and around the Hobby Lobby case and its longer-term implications. I want to spotlight, in particular, two articles in the most recent issue of the Stanford Law Review, which features a symposium on the fiftieth anniversary of the Civil Rights Act of 1964.

The first is by Sam Bagenstos. Titled "The Unrelenting Libertarian Challenge to Public Accommodations Law," its abstract reads:

There seems to be a broad consensus that Title II of the Civil Rights Act of 1964, which prohibits race discrimination in places of public accommodation, was a remarkable success. But the consensus is illusory. Laws prohibiting discrimination by public accommodations currently exist under a significant legal threat. And this threat is merely the latest iteration in the controversy over public accommodations laws that began as early as Reconstruction. This Essay begins by discussing the controversy in the Reconstruction and civil rights eras over the penetration of antidiscrimination principles into the realm of private businesses’ choice of customers. Although the controversy was discussed in the earlier era in terms of civil versus social rights, and in the later era in terms of property, contract, and association, the same fundamental concerns motivated objections to public accommodations laws in both periods. The Essay then turns to the current controversy. It begins by discussing Rand Paul’s 2010 comments questioning whether public accommodations laws are consistent with libertarian principles as well as the harsh response those comments drew from prominent libertarian commentators. It shows that Paul’s libertarian opponents disagreed with him only on pragmatic—not principled—grounds. The Essay then turns to an analysis of Boy Scouts of America v. Dale and of recent developments that promise to undermine the expressive-commercial distinction that has kept Dale from threatening the core of public accommodations law.

The second is by Richard Epstein, titled "Public Accommodations Under the Civil Rights Act of 1964: Why Freedom of Association Counts as a Human Right." Epstein's abstract reads:

On its fiftieth anniversary, Title II of the Civil Rights Act of 1964 enjoys widespread social support on all sides of the political spectrum. That support is fully deserved to the extent that the nondiscrimination in public accommodations provisions offset the monopoly power of common carriers and public utilities, or neutralize the abusive application of public power and private violence to suppress the free entry of firms that would otherwise target minority customers in competitive markets.

The subsequent expansion of Title II’s nondiscrimination principle becomes much more difficult to justify, however, when applied to normal businesses when segregationist forces no longer hold sway. In particular, these principles are suspect when applied to membership organizations that care about their joint governance and common objectives. In these cases, the principles of freedom of association should constitutionally protect all groups, even those that do not fall under the uncertain rubric of expressive associations.

The application of the modern antidiscrimination rules for public accommodations to Christian groups who are opposed to gay marriage on moral principle represents a regrettable inversion of the original purpose of Title II, using state power to force these groups to the unpalatable choice of exiting the market or complying with these modern human rights laws that prohibit any discrimination on grounds of sexual orientation. These rules should be struck down even if the other antidiscrimination prohibitions represent a group of settled expectations that no one today wishes to overturn.

Both articles are excellent and, as their authors recognize, highly relevant to the issues raised and presaged by Hobby Lobby. I do question the framing. I don't think all questioning of the expansion of the number and reach of public accommodation laws, or all views that hold that there must be some room within those laws for religious accommodation, can be described--or labeled, and having been labeled, dismissed--as libertarian. For various reasons, however, some sincere and some more strategic, those who reject this framing, and whose accommodationist leanings in this area are distinctly a minority view at present, have either held back or not fully thought through their own views. I think the time in which they could hold back has passed. If they don't want the entire discussion to be framed in terms of libertarianism vs. anti-libertarianism, they are going to have to speak up. When they do, they will have to engage with both of these fine articles.  


Posted by Paul Horwitz on August 11, 2014 at 08:35 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, July 01, 2014

Georgia Law Review Symposium on NYT v. Sullivan

The Georgia Law Review held a fine symposium on the fiftieth anniversary of New York Times v. Sullivan, titled "The Press and the Constitution 50 Years After New York Times v. Sullivan." I was sorry not to be there in person but delighted to contribute to it. The issue is now out; alas, I don't think the articles are available on the Law Review's website, but they should be on the usual databases shortly. (Another, equally superb symposium was also published in another law journal; both feature valuable contributions by Sonja West of the University of Georgia.)

Posted by Paul Horwitz on July 1, 2014 at 03:13 PM in Paul Horwitz | Permalink | Comments (0)

Friday, June 20, 2014

Weekend Reading: Driver, Reactionary Rhetoric and Liberal Legal Academia

Justin Driver has an excellent paper by that title in the new issue of the Yale Law Journal, which is an excellent issue devoted to Bruce Ackerman's new We the People book. Here's the abstract:

As celebrations mark the fiftieth anniversary of the Civil Rights Act of 1964, it is essential to recover the arguments mainstream critics made in opposing what has become a sacrosanct piece of legislation. Prominent legal scholarship now appears to misapprehend the nature of that mainstream opposition, contending it assumed more aggressive forms than it actually did. Upon examining the actual arguments respected figures wielded against the Civil Rights Act during the 1960s, certain patterns of argumentation become almost immediately apparent. Mainstream critics consistently opposed the legislation not by challenging it head on, but instead by employing three standard arguments that Professor Albert O. Hirschman’s The Rhetoric of Reaction identified as sounding variously in perversity, futility, and jeopardy. In addition to demonstrating how Hirschman’s taxonomy illuminates mainstream opposition to the Civil Rights Act, this essay proceeds to argue that modern legal academia accords The Rhetoric of Reaction inadequate attention. That is so because the forms of argument Hirschman explored now frequently appear in what would initially seem an improbable place: the scholarship of liberal constitutional law professors. Left-leaning legal scholars often propose revised assessments of high-profile Supreme Court opinions, asserting that—properly understood—those opinions have had perverse effects, ended up being futile, or jeopardized some larger achievement. Legal scholars also deploy such reactionary rhetoric prospectively, warning about the dangers that they assert will accompany future efforts to issue progressive judicial decisions. Given the prevalence of reactionary rhetoric among liberal law professors, it is crucial both to grapple with the reasons that may explain its current ascendance and to identify some of the undesirable consequences that could flow from its common usage.

I think it's a terrific read, although I don't necessarily agree with all of it.

It is worth noting two caveats Driver draws from Hirchsman's excellent book:

1) "Reactionary rhetoric is not the exclusive province of reactionaries. To the contrary, non-reactionaries can, under particular circumstances, feel moved to advance such arguments." 2) "In addition, Hirschman noted that his examination was primarily concerned with classifying and exploring recurrent rhetorical tropes, not assessing the underlying validity of those arguments within discrete historical contexts. Hirschman understood that simply because 'an argument is used repeatedly is no proof, to be sure, that it is wrong in any particular instance.'"

Thus, reactionary rhetoric may not be limited to liberal legal academics: it may indeed, for various reasons, be a standard trope for legal academics of various stripes. And the presence of a reactionary argument does not mean that the concern expressed is necessarily wrong; moreover, given the complexity of legal and social change and the lack of agreement on what constitutes a good outcome, it will be difficult after the fact to draw strong conclusions about whether a reactionary argument was correct. Repeated evidence that the sky did not fall completely, however, offers good reason to be avoid dire predictions when making a reactionary argument. For these reasons, I think Driver is on weaker ground when he expresses concern that reliance on reactionary arguments could produce "an unduly anemic understanding of the Supreme Court’s capacity to promote social change," and on stronger ground when he argues more modestly that reactionary tropes can be "overemployed." Nevertheless, he marshals his arguments and examples well and enjoyably. I particularly enjoyed this paragraph:

A second explanation for the trend in liberal academia’s usage of reactionary rhetoric stems from the nature of the academic enterprise. Professors often establish their own scholarly agendas at least partially in response to the generation of scholars who preceded them. If the generation of liberal scholars who came of age during the Warren Court and in its immediate wake heralded the Supreme Court’s ability to refashion society, it is not especially surprising that subsequent liberal scholars would dedicate themselves to revising that received wisdom. As the scholarly pendulum regarding the Supreme Court’s efficacy began to swing in the opposite direction, reactionary rhetoric fairly cried out for usage. The perversity argument, in particular, seems almost irresistible for those possessing the sensibilities of a legal academic. Although Hirschman did not portray the perversity thesis in these terms, his explanation of its mechanics helps to capture some of perversity’s appeal for academic audiences: “This is, at first blush, a daring intellectual maneuver. The structure of the argument is admirably simple, whereas the claim being made is rather extreme.” Later, Hirschman described the perversity thesis as “[s]imple, intriguing, and devastating.” It seems difficult to imagine any three adjectives to describe an academic article that would more readily grab law review editors by their lapels.

Posted by Paul Horwitz on June 20, 2014 at 09:46 AM in Paul Horwitz | Permalink | Comments (0)

Saturday, June 14, 2014

An Addendum on New York Times Op-Eds and Columnists

A fun post from Neil Buchanan on why he thinks the New York Times should get rid of its op-ed columnists and run a vast rotating bunch of writers instead. (It's not clear to me whether the replacements he envisions would only be experts opining on subjects ostensibly within their expertise, or whether he would also run a mix of opinionated generalists who would at least be more varied and surprising and entertaining than the existing limited stock of permanent columnists. On the former possibility, one might enjoy this short take from Mark Tushnet, along with his acknowledgment that his criticism applies especially to bloggers like us, who have some ostensible expertise in a particular area but sound off on all kinds of things.)

I'm fine with his proposal on the whole. I would add three pieces to his discussion that I don't think got much attention from him. One is a matter of the historical background that might help explain why the Times functions as it does. Columns in the Times have often served two useful internal purposes for the paper. One, they serve as a kind of negotiated golden parachute or emeritus position to ease someone out of a job like executive editor; Abe Rosenthal and Bill Keller fall into this category. Two, they have served as a way to retain a valued Times staffer, particularly one who has lost the grand sweepstakes for executive editor or some other main masthead position. Examples here include Anthony Lewis and Tom Wicker. I'm not sure this category describes any current main op-ed columnists (Maureen Dowd and Frank Rich may have been offered columns for retention purposes, but they were not leadership competitors.) It may describe some of the Taking Note and Contributing Writer columnists. These kinds of motivation were considerably responsible for the Times op-ed page taking the shape it did. The Times initially had an editorial page; the op-ed page was a relatively recent later innovation. The columnists it slowly accumulated were mostly people who insisted on a column as the price of staying at the Times rather than going elsewhere, or who were failed heirs apparent during particular moments of change at the top of the Times's masthead. (Other columnists filled a third need for the Times, which was "casting" or changing the face of the Times in response to demands for a more prominent role for African Americans, women, conservatives, and others; past examples include Bob Herbert, Anna Quindlen, and William Safire, and there is Ross Douthat in our own era.) 

Second, I think Buchanan acknowledges but gives too little weight to the degree to which something closer to what he wants has already taken place on the Times's web site, although not its print version. The categories and backgrounds of opinion writers on the web site have expanded considerably. Whether these writers are much good is a separate question; certainly the Taking Note column, which basically consists of politically predictable blog posts by former reporters, is worth skipping on a daily basis. (Indeed, I assume that Buchanan's proposal would only promise more variety and less tedium on the op-ed page, not necessarily better quality.)

Third, I cannot resist taking issue with a couple of his judgments along the way. Pace Buchanan, losing Charles Blow would not be a blow. By the time he left, Frank Rich was not a loss. (I am surprised that Buchanan laments stale, predictable column writing but exempts these two.) And he's wrong about Manohla Dargis.   

Posted by Paul Horwitz on June 14, 2014 at 09:15 AM in Paul Horwitz | Permalink | Comments (0)

Tuesday, May 27, 2014

A Separate Concurrence on the Kinsley Review

There have been some heated reactions to Michael Kinsley's review of Glenn Greenwald's book. (I'm not sure there are anything other than heated reactions these days, given the nature of online commentary. I do not consider this an unqualified good.) The Times's public editor or ombudsperson, Margaret Sullivan, has written a somewhat silly commentary on the controversy, which the Times unwisely but understandably has given prominent coverage on its web site tonight. At the Volokh website, Will Baude argues that the Times was right to publish Kinsley's review, although as I read it he is saying more than that--is saying that Kinsley is substantially right.

Of course the Times had every right to run the review and should not, as Sullivan argues, have edited out the heart of its colorable argument because it might be wrong or because, as she intimates, it constituted an unpardonable assault on journalism's amour propre. But Kinsley's argument is also basically correct. In that I agree with Will. But because we take different positions on how to get there and they are relevant to a good deal of my work, I thought it was worth spelling this out. (By way of disclosure, I have not read all of Greenwald's book, but I have read the final chapter, which is the relevant chapter, and skimmed the remainder of the book.) 

Whether you care much about the whole contretemps is of course your own affair. If you do or would like to, however, the key is this paragraph in Kinsley's review:

The question is who decides. It seems clear, at least to me, that the private companies that own newspapers, and their employees, should not have the final say over the release of government secrets, and a free pass to make them public with no legal consequences. In a democracy (which, pace Greenwald, we still are), that decision must ultimately be made by the government. No doubt the government will usually be overprotective of its secrets, and so the process of decision-making — whatever it turns out to be — should openly tilt in favor of publication with minimal delay. But ultimately you can’t square this circle. Someone gets to decide, and that someone cannot be Glenn Greenwald.

Sullivan replies: 

Mr. Kinsley’s central argument ignores important tenets of American governance. There clearly is a special role for the press in America’s democracy; the Founders explicitly intended the press to be a crucial check on the power of the federal government, and the United States courts have consistently backed up that role. It’s wrong to deny that role, and editors should not have allowed such a denial to stand. [I interrupt to say that this last clause is what leads me to call Sullivan's commentary silly, and to suggest that she intimates that the problem with the statement is its assault on the press's amour propre.] Mr. Kinsley’s argument is particularly strange to see advanced in the paper that heroically published the Pentagon Papers, and many of the Snowden revelations as well.

Will disagrees with Sullivan, and agrees with Kinsley, in that--like his fellow blogger Eugene Volokh--he believes that "journalists have the same constitutional rights (with the same limits) as other citizens," that the freedom of the press should be viewed in purely technological and not institutional or teleological terms. At least I think he does. He might simply mean to say that there are arguments to this effect, that they are reasonable and backed by good authority, and that it is therefore silly for Sullivan to suggest that Kinsley's argument was beyond the pale. If that's all he means, I join his opinion fully. (Although I wouldn't rely too much on the majority's discussion of the point in Citizens United, which was loosely constructed and weakly made. Eugene's article is much better than that. Still, I suppose the Supreme Court is an authority.) To the extent that he means to subscribe to this argument more fully, however, I part ways with him. And yet I come to the same conclusion he does.

Unlike Eugene, I do believe that there is an important institutional element to freedom of the press. (I discuss my views in a chapter of this book, which I continue to hawk and which would make a fine belated Memorial Day present.) It raises difficult boundary questions, to be sure (so does freedom of religion, for that matter), and its legal status tends to be as much sub-constitutional as constitutional. But I believe it's there: that there are relevant attributes and functions to the "press" and to the role of journalism, that they serve an important role in public discourse and particularly in the monitoring and checking of government power, and that they tend to receive some legal protection. (Sometimes that recognition comes less through a singling out of the press and more through the announcement of legal protections for every speaker that are nevertheless drafted very much with the press in mind and applied with special vigor in that context. Or so I have argued.) 

I stress all this because, notwithstanding the different set of premises from which I am arguing, I think Kinsley's argument is still basically right. I think he could have put the point much better, and that he is knowledgeable enough to do so. But he basically gets the law--and the good sense behind the law--right. Where he is inelegant is in his description of the press not getting the "final say" over the publication of government secrets. For the most part, absent the extraordinary circumstances in which injunctive relief would be permitted, the press (or any other speaker) does get the final say in whether to publish government secrets. Where Kinsley is right is that, even under a pretty staunch institutionalist view that might accord much greater privileges to the press than we currently do, of course the press does not get some absolute right to publish government secrets "with no legal consequences"--a "free pass." There are good institutional reasons to take care with those consequences and not to leave the decision whether to impose them solely to the regime in power. And so we insist that the final decision is made through the legal system and with the important legal, factual, political, and constitutional restraints added to that decision through judicial review. If Kinsley meant by "the government" only the executive branch or the political branches, he would be wrong. But if we include the judicial system as well, then he is quite right that the final decision on whether press publication of government secrets will, after the fact of publication, carry legal consequences rests with "the government." Any suggestions to the contrary in Sullivan's piece are wrong. So, even if you don't share Eugene's view (or, possibly, Will's), that "freedom of the press" is about nothing more than a technology--even if, as I do, you believe the press as an institution is important and constitutionally recognized--you should still conclude that Kinsley's argument in this paragraph is basically right and that Sullivan is quite wrong.  

Two shorter points. (What points wouldn't be, by now?) A minor point first. Sullivan gigs Kinsley for employing ad hominem argument. This seems wrong to me. Kinsley's discussion on this point is not an immaterial attack on something not present in the book. Much of Greenwald's book, at least in the first and last chapters, is not a technical or even substantive discussion of the information contained in the Snowden disclosures: it is a discussion of Snowden's good character, of his own moral decency and fierceness, of the sterling character of anyone who agreed with him, and of the low moral character of anyone who did not. Kinsley's criticisms were relevant not only to the tone of the book--to call Greenwald's writing in this book bombastic, as Kinsley does, is like calling the Hindenburg a wee balloon--but to its content. The irony thickens insofar as most of the negative responses to Kinsley's review are mostly rich with the sneering tone that his critics accuse Kinsley of using, although without his style. Sullivan is wrong to say Kinsley gets too personal in the review; the review is as personal as the book--correction: the memoir--requires. (I would agree, however, that Greenwald's character or bombast are irrelevant to the substance or value of the disclosures themselves. I do not expect my news to be brought to me by cherubim.)

Second, I was surprised to see some of Greenwald's supporters echo a line that appears in Kinsley's review and in Greenwald's book, in which Greenwald deplores a TV journalist for asking him about the potential legal consequences of his actions. In the book, Greenwald says that question constitutes “an extraordinary assertion” that “journalists could and should be prosecuted for doing journalism.” As an institutionalist on the question of press freedom, and as a former journalist, I might be expected to like that sentence. But it's rot. I admire its brevity; but if it can be said to mean anything at all, which I doubt, it is wrong.   

Posted by Paul Horwitz on May 27, 2014 at 10:42 PM in Paul Horwitz | Permalink | Comments (2)

Cornelia Kennedy, RIP

Cornelia Kennedy, a former judge on the United States Court of Appeals for the Sixth Circuit, died on May 12. Her obituary appeared in the New York Times a few days ago. Kennedy was, among other things, the first woman to serve as a law clerk for the DC Circuit, the first woman to serve as chief judge of a federal district court, the first woman to serve as a member of the Judicial Conference of the United States, one of the first women to be short-listed for a seat on the Supreme Court, and so on--a veritable crescendo of "firsts" and impressive achievements. A passage from the obituary reads: 

Arriving at her new post in Cincinnati, Judge Kennedy was startled to be presented with a hot plate. The only previous female judge to have served on the Sixth Circuit had used it while male colleagues dined at the University Club of Cincinnati, which excluded women then.

Judge Kennedy was eventually the first woman to be admitted to the club, though she objected that it continued to refer to itself as a “gentlemen’s club” in a newsletter.

Well worth remembering. I must add that although the fault may be in my searching, I have been astounded by how little attention her death received, certainly prior to the Times obituary but since then as well, and most certainly including no mention on the many sites that I would have expected to give it at least a line of space. I hope this redresses the balance a little.  

Posted by Paul Horwitz on May 27, 2014 at 12:38 PM in Paul Horwitz | Permalink | Comments (0)

Friday, May 23, 2014

Lithwick on Scalia (and God)

Let me get the sincere if rote caveats out of the way first. I think there is lots to admire about Dahlia Lithwick: she's a great writer, funny, and I think it's very impressive that she essentially created a niche for herself in Supreme Court journalism that did not previously exist, through talent and hard work. I also like her personally, if Facebook acquaintance is any indicator. She has a new piece on Justice Scalia in the Atlantic, reviewing a new biography of Scalia by Bruce Allen Murphy. It is, as usual, well-written. But I have a substantial number of disagreements with the piece. The gist of the piece can be summarized as follows: discussing the influence of religion on decision-making is "taboo" when it comes to Supreme Court justices; we ought to do more of it. I have little problem with the second half of that statement, serious questions about the truth and application of the first half, and plenty of large and small criticisms of the specifics of her attempt. Many of them are particular to her piece, a few have more general import, and there is perhaps a larger point to my criticism, which is that there is a quality mostly missing from her piece and entirely absent from a couple of the other examples she cites. Somewhat ironically, given the recent vocabulary of liberal discussions of judging, that quality is empathy.

Lithwick's piece begins like this:

March was a hugely important month for religion and the Supreme Court, and a pivotal moment for Justice Antonin Scalia, the subject of a fat new biography. Too bad we couldn’t talk plainly about what was, and is, at stake. In a country historically averse to political debates about competing faiths, nowhere is frank discussion of religion more taboo than at the U.S. Supreme Court. “Religion is the third rail of Supreme Court politics. It’s not something that’s talked about in polite company,” as Jeff Shesol, the author of a book about the New Deal Court, put it. He was speaking with NPR’s Nina Totenberg in 2010, when John Paul Stevens was looking at retirement and, for the first time in American history, there was the prospect of six Catholics, three Jews, and no Protestants on the highest court in the land—a watershed almost too “radioactive,” Totenberg remarked, even to note. And beware of venturing any further than that, as the University of Chicago Law School’s Geoffrey Stone did in a controversial 2007 blog post suggesting that the Supreme Court’s five conservatives likely derived their abortion views from Catholic doctrine: Scalia—a devout Catholic, and the current Court’s longest-serving conservative—announced a boycott of the school until Stone leaves the faculty.


I have written often before that I don't think religion ought to be a taboo subject in public discussion, in general terms or with regard to specific individuals. Like many law and religion scholars, I think religion can be a valid subject of discussion in politics and with respect to judges. I do not think legislators are precluded from considering and talking about religion in their decision-making, although I think they are limited in the outputs of their deliberation. I think a reasonable corollary of all this is that religion should be a permissible subject of discussion--and criticism--in public discourse. It is no more untoward to suggest that a judge's religion might influence his or her decision-making than to suggest that he or she is influenced by being a liberal, or a feminist, or a Republican, or a member of the affluent, well-credentialed elite. If there's a difference, it's one of degree, not of kind: criticism of that sort can be done rather poorly, and criticisms and assumptions based on religion can be done very poorly. It's ironic that Lithwick cites, with apparent approval, a blog post by Geoffrey Stone as an example of someone venturing bravely into this "radioactive" subject, because when Stone writes about these issues he generally does so quite badly. (More specifically, in my view, while there is some nuance in what he writes in the "middle" of those pieces, his introductions and conclusions are often cruder and more inflammatory than those middle sections can justify.)

To do it right does not mean avoiding direct criticism of religious beliefs: if they can permissibly serve as a basis for (non-judicial, at least) decision making, they can certainly be proper subjects for criticism. But it does require a good deal of nuance, care, self-examination, and, for lack of a better word, empathy: an attempt to appreciate the perspective of the religious individual from within and not just from without.

I think some failures along these lines are apparent in Lithwick's piece, in various ways. Some of them have to do with how the piece is framed. Framing the subject in terms of its being so "radioactive" that no one ever ventures there tends to lend to the author an air of intrepidity, inviting the reader to respond by praising the author for doing what no one else will and braving the consequences, and perhaps encouraging the reader to forgive any imperfections in the piece; after all, it's extraordinary that the dog is walking on its hind legs at all. But although the subject is controversial, it's hardly as unusual as all that. I have seen no shortage of blog posts, commentary in "news" outlets, and even law review articles discussing the subject. (Or, at least, discussing it when it comes to Catholicism; there are many fewer articles, if any, discussing how the Judaism of three members of the current Court affects or afflicts their judicial decision-making, although people have written about it in the context of long-dead Justices. Would they be applauded quite as loudly?)

Moreover, current writers are eager to point out that American Catholics' beliefs are not monolithic when it comes to things like contraception. It is unfortunate, then, that little evidence of the myriad ways in which the current Catholic Justices might differ--in their views of Catholicism, of the judicial task, and of the relation between the two--shows up in this piece or elsewhere. There's nothing wrong, again, with asking how a justice's religion influences his or her decision-making, But it will often be the case that a modest examination will answer the question "not proved." Yet the conclusions critics draw in this area are rarely so modest and, literally, unassuming. She writes, following Murphy, that "Scalia's religious self-certainty" has isolated Scalia on the Court and made him less effective at bringing together his fellow justices. A more modest examination might well conclude that Scalia has indeed isolated himself; I find his dissents of late often terribly ineffective and unnecessarily alienating. But would it require us to blame that on his "religious self-certainty," as opposed to his unquestionable self-certainty in general? Does the word "religious" add much to this conclusion?   

Lithwick continues by trying to draw a connection between the general topic of Scalia and the majority's Catholicism and broader doctrinal themes: "The problem of engaging religion openly at the high court extends beyond the unspoken agreement not to talk about the justices’ religions. The Court itself has opted not to probe the intensity or validity of a plaintiff’s religious conviction, in part thanks to Scalia’s reasoning." Of course, the discussion comes around swiftly to the Hobby Lobby case:

Fast-forward to March 2014, when the Court heard arguments in another case about religious dissenters from general laws: Sebelius v. Hobby Lobby Stores, Inc.—probably the most important case of the term, and a revealing capstone in Scalia’s jurisprudential career. Nobody that day dreamed of questioning the religious beliefs of the arts-and-crafts chain’s Christian owners, who were seeking exemption from the Affordable Care Act mandate to provide insurance coverage for birth control. Certainly the justices on the left wing of the Court and the Obama administration didn’t: whatever science, medical consensus, or neutral law may say on the subject of abortion-causing drugs and devices, the government wasn’t about to challenge Hobby Lobby’s belief that particular forms of birth control cause abortions (or to note that the business, even if inadvertently, once covered the same contraceptive methods its owners abhor). Nor was Scalia, who this time—in a dramatic about-face from his 1990 position—clearly supported the religious objectors. In fact, in the course of grilling the lawyers, he blurted out what sounded like agreement with the plaintiffs’ claims that these items were abortifacients. The spectacle was enough to make one wonder, quietly: Peyote didn’t sway him, but what about his own brand of piety?

This all seems rather questionable to me. Is this really about Scalia's faith, or any other justice's? It has long been a settled part of Free Exercise jurisprudence, since well before any of the current justices served on the Court, that judges should not inquire into the validity or intensity of religious beliefs, although the sincerity of those beliefs is still open for examination. Whether it's the right approach or not, there are many reasons for it. To the extent that Lithwick is concerned about Scalia being influenced by his Catholicism, she should if anything be reassured by this rule, which prevents him from diving skeptically and clumsily into the "validity" of religious convictions held by members of minority faiths. This approach not just required by the caselaw, but by Congress as well, in cases involving RFRA or RLUIPA.

One may be skeptical about the suggestion that the government or the left wing of the Court was entirely supine on some of these questions; certainly those carrying the administration's water in public arguments over the Hobby Lobby have not been. (And, to meet a parenthetical with one of my own, if prior subsidy of contraceptive methods was inadvertent, how relevant should it be?) Nor, despite his gyrations in the field of Free Exercise, is it fair to say that Scalia showed a dramatic about-face from his 1990 position: here he is facing a statute that was specifically intended to give the Court a different set of marching orders from those he set out in 1990, and even under that case the question would remain whether existing exemptions from the contraceptive mandate rules create problems of neutrality and general applicability.

"Peyote didn't sway him, but what about his own brand of piety?" is a great sentence, but neither clause is especially warranted in the circumstances. Although I think Scalia was wrong in Smith, he didn't question the intensity or validity of those worshippers' beliefs or practices; and in the current case, we have plenty of reason to conclude that RFRA requires an exemption without inquiring uncertainly into his own Catholic piety. (And plenty of reason to conclude that any Jewish or liberal dissenting justices read RFRA and its application differently without drawing conclusions about whether, in rejecting an exemption claim on the part of Christian groups, they are moved by their own brand of Jewish or secularist or feminist piety.)

Perhaps a note on Lithwick's conclusion is warranted as well. She describes the Court as currently hearing "passionate challenges to a secular society from religious dissenters." For those of us who still disfavor the Court's decision in Smith, there is some irony here too, because for many of us the problem with Scalia's opinion in Smith is that it was, if not secularist, then certainly highly statist. More broadly, though, that description relies on a set of assumptions about ours being a "secular society" and what, exactly, that means. I would have thought, or hoped, that it was more accurate to call ours a pluralistic society, and in some official and unofficial areas an agnostic one. Even if it is a secular society, it is at best an open question whether that requires us to be inhospitable to religious accommodation, which is capable of secular as well as religious justification. That's doubly true when the accommodations regime is ordered by Congress, not the courts. We should not accept this framing too uncritically.  


Posted by Paul Horwitz on May 23, 2014 at 09:55 AM in Paul Horwitz | Permalink | Comments (3)

Sunday, May 18, 2014

One Last, Small Point About Justice Scalia's Commencement Address

It did not take long to exhaust the basic points of commentary on Justice Scalia's recent commencement address. First Amendment scholars, lulled or captured by his mistaken suggestion that every law student ought to take a First Amendment course, may, however, have missed a small point of some interest to them. Here, via Will Baude at VC, is an introductory, stage-patter-ish remark from Scalia's speech:

I have a philosophy of commencements. They are not for the benefit of the graduates, who would probably rather have their diplomas mailed to them at the beach. They are for the pleasure and satisfaction of the graduates’ families and friends, who take this occasion to observe and celebrate a significant accomplishment on the part of those whom they love. In that respect a commencement is like a wedding or baptism: the primary participants in those events would rather be elsewhere as well. Since that is the nature of a commencement, it does not much matter what the commencement speaker talks about. He can talk about whatever burr is under his saddle, so long as he does not go on too long.

Rereading this, I realized what the line about weddings and baptisms reminded me of: Scalia's concurrence in McCreary County v. ACLU. In his dissent in the companion case of Van Orden v. Perry, Justice Stevens pointed out that there are several different versions of the Decalogue, "ascribed to by different religions and even different denominations within a particular faith." Scalia, in his dissent in the McCreary County case, chimed in on both cases and was both incurious about and indifferent to Stevens's point about the varieties of Decalogue: "The sectarian dispute regarding text, if serious, is not widely known. I doubt that most religious adherents are even aware that there are competing versions with doctrinal consequences (I certainly was not)." One may also be reminded of the oral argument in Salazar v. Buono, in which, as Richard Schragger has written, Scalia was "aghast...when an attorney from the ACLU suggested that a cross commemmorating the war dead was offensive to Jews." ("It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me -- what would you have them erect?")

What does all this have to do with the paragraph quoted above? Well, of all the examples of religious ceremonies at which the primary participant would prefer to be elsewhere, I would have thought the best example (aside from a funeral, which may be a little heavy for a commencement address), far better than a wedding--is that a good example at all?--or a baptism, is: a bris

Posted by Paul Horwitz on May 18, 2014 at 10:56 AM in Paul Horwitz | Permalink | Comments (0)

Thursday, May 15, 2014

Dean Baquet's Historic First

Given the particular media tastes of folks who read this blog, some may be interested in learning more about Dean Baquet, the new executive editor of the New York Times and the first African-American executive editor in the paper's history. Baquet grew up in a working-class family, living "in the back of a Creole restaurant that his father — a former postal worker with only a grade-school education — owned and operated." His first ride on an airplane came at the age of 18. He made it to Columbia but dropped out to pursue a career in journalism, winning the Pulitzer in 1988, among other achievements. Pretty well universally liked by his colleagues at the Times and elsewhere--one profile of him is titled, quite accurately, Nothing But Fans--Baquet is also well-known in the field for his stint as editor of the LA Times, where he pushed back against the publisher and was ultimately pushed out.

Much has been made in the past day of an anecdote in which Baquet punched a wall after a newsroom argument. At the risk of overanalyzing it, I was surprised that none of those discussions pointed to one potentially interesting aspect of that anecdote. As others, both scholars and journalists, have written, a traditional stereotype by which black men are often characterized and then rejected as unsuitable leaders or executives is the trope of the "angry black man." Perhaps there is a slim glimmer of hope in the fact that Baquet is and remains widely admired and respected as a collegial, hands-on editor, rather than having been relegated to the realm of stereotype and judged as presumptively "angry" or "temperamental" by this minor incident. Again, I would hardly want to draw too much from any particular anecdote; and I am not much given to punching walls myself. But I was surprised that, given the sheer volume of identity politics discussions surrounding the Times in the past day, not one of them mentioned the ways in which this anecdote might have been, but ultimately was not, viewed through the lens of a fairly typically recognized racial stereotype that often unfairly holds back or constrains black men in the workplace, for whom the slightest departure from coded workplace norms can be a heavy professional millstone. Within the profession, Baquet is one of the most popular and respected journalists of his generation. His ascension is both impressive and historic. 

Posted by Paul Horwitz on May 15, 2014 at 09:39 AM in Paul Horwitz | Permalink | Comments (7)

Tuesday, May 13, 2014

A Good--and Busy!--Hiring Year for Alabama

I had been waiting to announce all of my law school's hires until all of them were in, all the press releases issued, and so forth. I think everything is now official. It's been a busy year here! 

I'm delighted to say that we have a new Dean: The University of Alabama School of Law will welcome as its dean Mark Brandon, currently Professor of Law at Vanderbilt. Mark is an accomplished scholar and teacher (coincidentally, Larry Solum today has a link to Linda McClain's glowing review of Mark's latest book); in addition to Vanderbilt, he has also taught at Princeton and Michigan. He is also, I note with pride, a graduate of and former teacher at the University of Alabama School of Law. We're delighted that he has gone so far and brought all those experiences home to us, and we look forward to working with him. He replaces Ken Randall, who served for dean as many years and was responsible for unprecedented innovations and advances in the law school. More recently, our colleague and friend Bill Brewbaker took on the fairly thankless job of interim dean, and did a wonderful job. I would be remiss if I failed to acknowledge the hard work done by everyone involved in the dean search, and the great results they achieved.

Mark joins a growing faculty. We will be joined next year by five new colleagues: Adam Steinman, one of the leading young figures in civil procedure and federal courts; Jenny Carroll, who has been doing terrific work on criminal procedure, among other areas; Mirit Eyal-Cohen, an important emerging figure in the area of tax law; Yuri Linetsky, who will be adding to our significant clinical programs; and John Gross, an accomplished and experienced criminal defense attorney who also will be contributing to our clinical offerings. I'm very excited about all of them, and about Alabama's continued growth and progress. Welcome, everyone!

Posted by Paul Horwitz on May 13, 2014 at 05:36 PM in Paul Horwitz | Permalink | Comments (0)

Schragger on Localism, the Establishment Clause, and Town of Greece

In a post last week on the Town of Greece v. Galloway decision and the "geography of church and state" (TM), I wrote to express my hope that Rich Schragger of UVa would say something about these issues. Once again, Prawfs gets results. Rich had this interesting post on the issue last Thursday. Like all his stuff, it's worth reading.

I think, based on his writings on these issues, that we come out in different places on the Establishment Clause and localism at the end of the day. I tend to think, perhaps in the teeth of the constitutional text (at least as some read it), that local "establishments" are more worrisome and more in need of judicial oversight, in light of the lumpy demographics of religion on the ground, than national "establishments." But Rich has written more and better things on this issue than I have, and I always learn from and am challenged by his work in this area. And I agree with him on a central point of his post: that the nature and role of local governments in Establishment Clause cases like Town of Greece is generally, and wrongly, treated by the courts and by many advocates on the issue as "incidental and not central." Read Rich's post.   

Posted by Paul Horwitz on May 13, 2014 at 10:50 AM in Paul Horwitz | Permalink | Comments (0)

Cute Chart, Questionable Advice

I enjoyed the decision chart that Howard posted the other day, but for some reason it's been sticking in my head. It's perhaps worth noting that in its original appearance (as far as I know), it was titled "Asking questions at conference," not--as Howard has it--"Workshops." (Howard got it via Feminist Law Profs, which didn't title it one way or the other.) I'd have to think about whether it makes more sense for conferences as opposed to workshops. But although it obviously is humor, pretty obviously is funny, and definitely conveys some truths, I think it would be bad advice for those considering asking questions at workshops. Part of my concern has to do with something a commenter on Howard's post picked up on--that, if we are to credit recent studies and articles about confidence gaps, a rule that encourages the un- or under-confident to almost always shut up could have negative and disproportionate effects. Of course I think there is definitely such a thing as too much confidence in the value of one's own contributions. But I wouldn't want a rule of etiquette that effectively leaves the already overconfident free to natter on and reinforces the insecurities of those who are already underconfident.  

And some of the "advice"--although, again, I understand that it's just humor--is just plain wrong, at least in a workshop setting and probably in any setting. We have all heard--and most of us have asked--workshop questions that go on far too long; but, to take one example, "Could you write your question on twitter" seems like just an awful guideline.  

Here's a general suggested guideline on whether to ask a workshop question: Are you serving the paper, author, and/or workshop process, or are you serving yourself?

If your question is meant to provide a useful challenge, refinement, or improvement to the paper, then it's probably OK. The fact that you might, God forbid, be wrong or, worse still, sound dumb should not stop you from asking the question. The fact that the question might draw on your own work is not disqualifying, if the question would serve the paper and not just yourself. The fact that the question might start with "In my experience" is perhaps a warning flag, but not in itself disqualifying. Maybe your experience is relevant. In any event, it's not quite right to say in response to this prospect, as the chart does, "No-one came to hear about your experience. They came to hear from the speaker." They came for the paper, not the speaker. If your question would serve the paper, then so be it. For that matter, there are some speakers out there, and not just audience members, who need to remember that they are there to serve the paper and not themselves; some brush-off answers end up demonstrating the speaker's own cleverness and facility at debate while batting aside genuine problems with a paper.

There are some special cases. In particular, what do you do if your question is really just a fundamental disagreement with the foundational normative (not factual) premises of the paper? My answer here varies. If the paper starts with an assumption in favor of equality rather than liberty, to offer a somewhat cartoonish example, there may not be much point in questioning it on that basis. If the paper is an "originalist" take on some question, I doubt there's much point in taking on all of originalism in a question. On the other hand, there are many papers that take their foundational premises for granted, don't spell them out, don't address well-recognized internal problems with that premise, and so on. Asking the speaker (or the paper) to spell out its assumptions better can be a valuable service.

In any event, I think the single question I have offered above is a fairly useful general guideline in determining whether to ask a question at a workshop or not than the one presented in the chart. Again, I appreciate that it was just a joke chart. But since it troubled me, and given that Howard offered it his approval, and in light of the background concern raised by that commenter, I figured I'd offer my two cents. 

Posted by Paul Horwitz on May 13, 2014 at 10:04 AM in Paul Horwitz | Permalink | Comments (0)

Wednesday, May 07, 2014

Geography and Town of Greece v. Galloway: A #Prawfspitch

I've been thinking and, in draft, writing about geography and church-state relations over the last couple of years. It seems to me a fertile area in which not enough work has been done, and given the (also underexploited) overlap between race and religion, it is an area in which much more could be done to adopt or adapt materials like this. (More directly on point, I strongly recommend this book, which summarizes a series of books.) The subject has been much on my mind in the last two or three days while reading and commenting on Town of Greece v. Galloway. I assume plenty of people are sharpening their keyboards to write longer scholarly work on the case, and I thought I would offer, for what little it's worth, some ways in which the opinion more or less obviously intersects with questions of geography and church-state relations. All of these suggestions are yours, for the price of a mere footnote.

1) The most obvious connection is the piece of Justice Kennedy's ruling that concludes that the town's failure to reach outside its boundaries in seeking people of other faiths to give invocations, which was particularly important in the case given the fact that there were synagogues located nearby and serving the town's Jewish population, does not constitute a violation of the Establishment Clause. Justice Kennedy writes: "The town made reasonable efforts to identify all of the congregations located within its borders and represented that it would welcome a prayer by any minister or layman who wished to give one. That nearly all of the congregations in town turned out to be Christian does not reflect an aversion or bias on the part of town leaders against minority faiths. So long as the town maintains a policy of nondiscrimina­tion, the Constitution does not require it to search beyond its borders for non-Christian prayer givers in an effort to achieve religious balancing." As I said in my SCOTUSblog post, this is both reasonable and troubling. It makes some administrative sense, and reflects the idea that an invocation at a local government meeting will serve and mirror the local community. But political borders are neither purely adventitious nor utterly innocent, whether one is thinking about race or religion. (Mark Tushnet has a post raising similar questions.) 

2) On a related point that I mentioned but buried deep in my earlier post today, Justice Kennedy wrote a concurrence in the Kiryas Joel decision that deserves to be read alongside and against his opinion in Town of Greece. In saying so, I'm not suggesting that the two are irreconcilable. I do think, however, that one might help illuminate the other, and perhaps bring out some important tensions. 

3) A broader point of the geography of church and state is raised by the Town of Greece decision, one that we generally pay less attention to because of our assumptions about the national uniformity of constitutional law. Again, I would recommend here the book One Nation, Divisible: How Regional Religious Differences Shape American Politics, by Mark Silk and Andrew Walsh. That book, summarizing a series of other books, discusses the different ways in which religion tends to manifest itself in different regions of the United States, and the different forms of church-state relations and controversies that these regional differences produce. These differences have and will certainly play out in different forms of and fights over legislative prayers. Justice Kennedy's description of the nature and purpose of legislative prayers, however, assumes that legislative prayers have a particular, universal form and function, and that divisions over them, and solutions to those divisions, will be equally universal. In deciding Establishment Clause cases, the Court may sometimes make assumptions and offer solutions that might work well in some parts of the country and not in others. 

4) There's also a somewhat more abstract question of the geography of church and state involved in Town of Greece; it appears mostly in Justice Kagan's dissent, about which I still hope to say something. Kagan writes, in the opening lines of her dissent: "A Christian, a Jew, a Muslim (and so forth)—each stands in the same re­lationship with her country, with her state and local communities, and with every level and body of govern­ ment. So that when each person performs the duties or seeks the benefits of citizenship, she does so not as an adherent to one or another religion, but simply as an American." This idea itself reflects a longer set of assumptions about the nature of political sovereignty and the place of religion within nation-states. In his book Pluralism, William Connolly describes it as follows: "The Westphalian accord in early modern Europe recognized the sovereignty of each European state over its citizens by pushing religious differences into the private realm." Of course, this idea has always been subject to refinement and contestation. Kagan's dissent, which I find somewhat underdeveloped and unsatisfying on this point, might be fruitfully explored in this light.

5) More obviously, there is Justice Thomas's concurrence, which pushes again on the question of whether the Establishment Clause is or is capable of being incorporated against the states. (This is the section that features the soon-to-be-famous words, "As an initial matter, the [Establishment] Clause probably prohibits Congress from establishing a national religion.")

6) On a more direct note, I hope that one of the people writing about these kinds of questions will be Rich Schragger of UVa. His work on the relationship between localism and church-state law is wonderful, and I think he would have a lot to say about this case that would be surprising, one way or another. His co-authored post on Town of Greece is good, but I think based on his past work that if he expanded on the introduction provided there, it might take him to very different places than his co-authors. I would definitely read that article.  



Posted by Paul Horwitz on May 7, 2014 at 11:36 PM in Paul Horwitz | Permalink | Comments (2)

Learning From Bedrosian, Cavanaugh, and Town of Greece v. Galloway

Rushing to speak about the latest church-state Supreme Court judgment is not just a sport for law professors. Legislators can do it too. It did not take long for Al Bedrosian, a member of the board of supervisors of Roanoke County, Va., to speak up, in rather moronic fashion. Bedrosian had urged the board to reject a nonsectarian prayer policy. After the ruling, he made clear not only that he did not want a non-sectarian policy, but that he wanted individual supervisors to approve individual prayer-givers and that as far as his own choices were concerned, he would not be inclined to approve "representatives from non-Christian faiths and non-faiths, including Jews, Muslims, atheists and others." Quoth Bedrosian: "I think America, pretty much from founding fathers on, I think we have to say more or less that we’re a Christian nation with Christian ideology . . . . If we’re a Christian nation, then I would say that we need to move toward our Christian heritage." In the story linked to above, Dahlia Lithwick of Slate writes that "[Justice] Kennedy’s plurality opinion Monday [in Town of Greece] opened the door to precisely this line of argument as a result of all his airy talk of religious tradition and history," that the opinion "open[s] the door for Bedrosian to zone out the Muslims and the Jews," and that "[t]he real worry after Town of Greece is that we get to pick, apparently by popular acclaim, which are the American religions and which are the un-American ones." More on this below. 

Also on my mind these last couple of days has been a government official from my home state of Alabama, the wonderfully named Twinkle Cavanaugh, president of the Alabama Public Service Commission. Last summer, a minister, described as a friend of Cavanaugh's, gave an invocation at a commission meeting in which he begged God's forgiveness for our nation's wicked ways, saying, ""We've taken you [God] out of our schools and out of our prayers. We have murdered your children. We've said it's okay to have same-sex marriage. We have sinned and we ask once again that you forgive us for our sins." (Of note, given one of the debates in the Town of Greece case: the video suggests the minister faced the audience, not the board.) Cavanaugh defended the prayer, naturally.


What does Justice Kennedy's opinion in Town of Greece v. Galloway have to say to people like Bedrosian or Cavanaugh--and what do incidents like this say about the opinion?

I think Lithwick, despite her parsing of the opinion, is mostly wrong to say that it opens the door to a policy like Bedrosian's or to the policy that someone like Cavanaugh might opt for. Kennedy is clear, or clear-ish, that "If the course and practice over time shows that the invocations denigrate nonbelievers or religious minorities, threaten damnation, or preach conversion, . . . [t]hat circumstance would present a different case than the one presently before the Court." The purpose of an invocation is supposed to be to solemnize an event, not to serve as a soapbox or proselytizing forum. A pattern "of prayers that over time denigrate, proselytize, or betray an impermissible government purpose" may establish a constitutional violation. While a prayer policy that, tracking local borders, ends up being nearly entirely Christian will not transgress the Establishment Clause, the governmental body in question must "maintain[ ] a policy of nondiscrimination." In his concurrence, Justice Alito adds that he would have viewed the case "very differently" if the omission of local synagogues by the Town of Greece "were intentional." 

It is quite clear that Bedrosian's policy violates these precepts. It seems equally clear that if there were a "course and practice" on the part of someone like Cavanaugh of inviting invocations that served as a general opportunity for rather opinionated and potentially denigratory prayer rather than solemnization, a court following Town of Greece would be empowered to act. Active, intentional "zoning out" or "picking" of particular faiths, or using a prayer policy as a forum for moral revivalism rather than somewhat platitudinous (if sectarian) solemnization, are not now entitled to free rein.

I said "mostly." As Howard writes elsewhere on this page, and as Chris Lund writes in his contribution to the SCOTUSblog symposium, it will be more difficult to show a "course of practice" than to single out particular prayers as impermissible. Cavanaugh might get one, two, or several byes, although if she maintained a pattern or policy of inviting invocations like the one described above, in theory the practice ought to be redressable. There is also the question of how interested the Court really will be in these issues going forward, and how lower courts will respond; Town of Greece gives them adequate tools, but there is no guarantee they will use them. And while I think Lithwick's particular description of "zoning out" minority faiths is wrong, it is true that the Court demonstrates a somewhat touching faith in political borders, and would appear to have no problem if a prayer policy that was not actively discriminatory nonetheless ended up excluding minority faiths simply because the local houses of worship within a set of political borders belong to one faith. (Someone will have to take up the work of reading Kennedy's opinion in Town of Greece against his concurrence in the Kiryas Joel case.) 

Howard notes that not every public official will be as blatant as Bedrosian. That leads me to my last point, which has to do with what Justice Kennedy might learn from Bedrosian or Cavanaugh rather than the other way around. Kennedy paints a rather neat picture of legislative prayer as "lend[ing] gravity to public business, remind[ing] lawmakers to transcend petty differences in pursuit of a higher purpose, and express[ing] a common aspiration to a just and peaceful society." And in defending the practice, he writes, "A test that would sweep away what has so long been settled would create new controversy and begin anew the very divisions along religious lines that the Establishment Clause seeks to prevent." Those words, taken together, suggest that there is a long and calm practice at work, and that suddenly erasing it would open up an unfortunate new front in the culture wars.

But legislative prayer is not just an unbroken, calm tradition. (If it is that at all, but nothing turns on that for my point here.) It is also, at least sometimes, a deliberate, and deliberately introduced, front in the culture wars. If Bedrosian wanted mostly Christian prayers, he could probably have relied on religious demographics and political borders to do his work for him. But that does not mean his blatant statement the other day was a clumsy error. He may have wanted the attention more than he actually wanted the prayers. He may have wanted to speak to a subset of the primary voters of Roanoke County more than to the Christians of Roanoke County as a whole. By the same token, I assume Cavanaugh sincerely believes what the minister who gave that invocation had to say. But even more strongly, I suspect that, with one eye on future primaries and future offices of her own, she would rather be seen to be condoning a divisive, non-solemnizing prayer than to select ministers who would make milder statements and draw no attention to her at all.

That does not mean Kennedy's descriptions of legislative prayer are always wrong, or that the opinion is utterly wrong. (As I've written elsewhere, I think legislative prayer is a constitutionally questionable practice; and as I wrote yesterday, I have issues with Kennedy's opinion. But not necessarily because of Bedrosian or Cavanaugh.) But it does suggest that there is too much milquetoast in his description of legislative prayer. It also suggests that his description of the occasions for political division along religious lines is too limited. It is true that getting rid of legislative prayer at one fell swoop would be divisive. But it's also true that sometimes, particularly in the hands of primary-minded politicians, legislative prayer can be intended to divide, not to solemnize. In the short run, at least, given Town of Greece, I suspect that the most effective forces in counteracting this use of legislative prayer for deliberately divisive political purposes will be the supporters of legislative prayer, who have an obligation to condemn this kind of behavior, and not its general opponents.   

Posted by Paul Horwitz on May 7, 2014 at 02:39 PM in Paul Horwitz | Permalink | Comments (7)

Tuesday, May 06, 2014

Town of Greece v. Galloway on SCOTUSblog

SCOTUSblog is running a series of quick-take reactions to the decision in Town of Greece v. Galloway. Here's the index, and here is my short piece on Town of Greece and Scottish menswear; stay tuned for my friend and co-blogger Rick's commentary as well, and in the meantime definitely read Chad Flanders's piece. I hope to have other commentary here in time. Enjoy.

Posted by Paul Horwitz on May 6, 2014 at 04:38 PM in Paul Horwitz | Permalink | Comments (1)

Monday, May 05, 2014

Review: Legal Intellectuals in Conversation

I very much enjoyed James Hackney's recent book, Legal Intellectuals in Conversation. My review of the book appears in the new issue of the Journal of Legal Education, and can be found here. Enjoy.  

Posted by Paul Horwitz on May 5, 2014 at 04:01 PM in Paul Horwitz | Permalink | Comments (2)

Friday, May 02, 2014

Weekend Reading: "The 'Law' in Dworkin's Treatment of Law and Religion"

Just posted on SSRN is my forthcoming short piece, "A Troublesome Right": The 'Law' in Dworkin's Treatment of Law and Religion. Comments and corrections welcome, as always. Here's the abstract:

In his final book, Religion Without God, Ronald Dworkin offers an eloquent and gloriously compact treatment of a massive subject--life, death, eternity, and the human condition. He also offers an application of his views on those broader questions to a narrower, more practical issue: the law of religious freedom. In this paper, I focus narrowly and critically on Dworkin's treatment of the law of religious freedom. 

Dworkin asks whether there is a principled "justification for offering religion a right to special protection that is exclusive to theistic religions," and if not, what the scope and nature of religious freedom should be. He ultimately proposes, in effect, to interpret "religion" broadly for purposes of "freedom of religion" but demote that freedom altogether. He would treat freedom of religion as "a very general right to what we might call 'ethical independence'" rather than as a "special right." As such, subject to some constraints, government could infringe freedom of religion without having to show a compelling interest in doing so. Dworkin would also, it appears, substantially limit the occasions on which government can or should provide legislative accommodations for burdened religious practices. What we have, when Dworkin is done, is basically a narrow version of the Supreme Court's decision in Employment Division v. Smith, but without that decision's receptivity to legislative rather than judicial accommodation of religion.

There is much to admire in Dworkin's broader arguments about religion in the book. His arguments about the law of religious freedom are quite another matter. The accuracy and persuasiveness of Dworkin's arguments on this issue rest substantially on three things: his statements about current law; the initial moves by which Dworkin clears the ground for his demotion proposal; and his applications of the demotion proposal, which he suggests could help lower the temperature of the culture wars. I argue that all three elements of Dworkin's argument for the demotion of religious freedom are deeply flawed.

Posted by Paul Horwitz on May 2, 2014 at 11:00 AM in Paul Horwitz | Permalink | Comments (1)

Thursday, May 01, 2014

Why Are You Here...

...when you should be visiting Balkinization?

Perhaps I put that badly. I just wanted to point out that Balkinization has had a lot of fantastic posts lately. In particular, it's running a great series of responses to Bruce Ackerman's latest "We the People" book, The Civil Rights Revolution. And it has run a number of interesting posts recently by contributors to a Yale Law Journal feature on  "Federalism as the New Nationalism." To paraphrase Apu, please go away and read Balkinization, and come back soon. 

Posted by Paul Horwitz on May 1, 2014 at 09:41 AM in Paul Horwitz | Permalink | Comments (1)

Monday, April 28, 2014

"Hell on earth" and "jackbooted authoritarianism"

Sparked in part by this Robert George post--which, I must say, refers to a very serious underlying problem--I was inspired to revisit this book review (of a book by Gertrude Himmelfarb) by Richard Posner, which I think is one of his better and more enjoyable book reviews. (That's saying a lot; book reviews, which I tend generally to love, are a genre in which he does some of his best work.) 

While I'm on this inspiration kick, I would add that Ted Cruz's rather astonishing line the other day describing the Bundy standoff as a product of the Obama administration's employment of the "jackboot of authoritarianism" reminded me of one of my favorite passages from Tom Wolfe, quoted at length in this ancient post from the Volokh Conspiracy. Here's part of it:

Support [for Wolfe's view that fascism wasn't coming to America] came from a quarter I hadn't counted on. It was [Gunter] Grass, speaking in English.

"For the past hour, I have my eyes fixed on the doors here," he said. "You talk about fascism and police repression. In Germany when I was a student, they come through those doors long ago. Here they must be very slow."

Grass was enjoying himself for the first time all evening. He was not simply saying, "You really don't have so much to worry about." He was indulging his sense of the absurd. He was saying: "You American intellectuals — you want so desperately to feel besieged and persecuted!"

He sounded like Jean-François Revel, a French socialist writer who talks about one of the great unexplained phenomena of modern astronomy: namely, that the dark night of fascism is always descending in the United States and yet lands only in Europe.

Not very nice, Günter! Not very nice, Jean-François! A bit supercilious, wouldn't you say! . . .

Posted by Paul Horwitz on April 28, 2014 at 10:10 AM in Paul Horwitz | Permalink | Comments (1)

Friday, April 25, 2014

"More 'Vitiating Paradoxes': A Reply to Steven D. Smith--and Smith"

As I've said here many, many times, I'm a big fan of Steven D. Smith and of his work on law and religion. I don't always agree with it, but I frequently do and I always find it bracing. His latest book, The Rise and Decline of American Religious Freedom, is well worth reading. A lecture he gave on the subject of the book, drawn substantially from the last chapter of the book, will be published shortly by the Pepperdine Law Review. I have one of several replies that will accompany the lecture. It's somewhat awkwardly titled More "Vitiating Paradoxes": A Reply to Steven D. Smith--and Smith, and it's now available on SSRN. Comments are welcome, of course, and I believe Steve will have a response to the replies. Here's the abstract:

This is a reply to Steven D. Smith's Brandeis Lecture, "The Last Chapter?" That lecture is substantially drawn from the concluding pages of his fine recent book, The Rise and Decline of American Religious Freedom. In the lecture and the book, Smith explores what he calls some "vitiating paradoxes" of some of the key concepts that undergird the conventional account of American religious freedom, and argues that those paradoxes may render religious freedom especially vulnerable in an age of increasing liberal egalitarianism. He also offers a competing account of religious freedom, one that involves both a "soft constitutionalism" approach to the Establishment Clause and a revival of some form of "freedom of the church." 

My reply is basically an internal account, supportive in some respects and critical in others. One of the main contributions that Smith has made to law and religion scholarship over the years is his skillful deployment of critical tools to reveal flaws in the underpinnings of Religion Clause law and theory. He is, I suggest, the charter member of the law and religion branch of a rather small but valuable school: Conservative Critical Legal Studies. In this reply, I take his critical views on board and wonder where, if anywhere, the "potentially vitiating paradoxes" that he identifies in the conventional account of religious freedom end; I also apply Smith's critical framework to the competing account of American religious freedom that he offers. In particular, I question his recommendation of some form of "soft constitutionalism" limited essentially to the Establishment Clause; explore the difficulties involved in what I suggest is a growing reconciliation, including among conservatives, to the Supreme Court's decision in Employment Division v. Smith; and ask whether we might not view arguments for "freedom of the church" as a kind of salvaging device for those who favor a "soft" or jurisdictional reading of the Establishment Clause, and who have come around on Employment Division v. Smith, while still seeking to preserve some measure of church autonomy.   

I should add that my observations about "freedom of the church" as a salvaging device are not meant as  an indictment or a charge that it is intentionally being offered for that purpose. (Nor would I assume that some of the recent arguments against it, or against legal doctrines related to it, are offered insincerely or strategically.) I have written repeatedly* and quite supportively about freedom of the church and/or institutional religious freedom. But, as I've written elsewhere, I also think it's a valuable exercise for its friends, and not just its adversaries, to take a critical look at the concept, even (or especially) if they ultimately support it. Similarly, as new (or very old, depending on your perspective) doctrines and arguments emerge in a field, I think it's important to examine how they fit in with the web of existing outcomes and existing or changing doctrines. It's here, I think, that my "salvaging device" argument comes into play. But this can be a more or less organic development rather than a step in some grand, secret plan. With that caveat in mind, enjoy. 

* (Need I add that this book would make a splendid belated Administrative Professionals Day gift?)


Posted by Paul Horwitz on April 25, 2014 at 09:45 AM in Paul Horwitz | Permalink | Comments (2)

Friday, April 18, 2014

Three (and a Half) Takes on Animus

I have a "jot" on Jotwell today about Steve Smith's forthcoming piece, The Jurisprudence of Denigration, which offers a critical but (and?), I think, very intriguing take on the use of animus in United States v. Windsor. As I say in the jot, hopefully correctly, one may support the outcome in Windsor and still think that Smith offers some useful and provocative comments on why contemporary constitutional and moral discourse may lend themselves to the use of animus rather than alternative forms of argument in this area. I suspect that Steve and I may often have sharply different views on some of the underlying issues here and elsewhere, but I always find his work productive and disturbing.

It's an interesting coincidence that this jot appears a couple of days after I noticed a new paper by Dale Carpenter, Windsor Products: Equal Protection From Animus, forthcoming in the Supreme Court Review. I haven't read it thoroughly yet, but so far I find it a clearer and better description and defense of the concept of animus than much I have seen elsewhere, and certainly than Justice Kennedy's own writing on the subject. I look forward to reading the whole thing more carefully. It's not up on the website yet, but I should also note that the Harvard Law Review's latest issue has a good package of pieces on developments in this legal area, with a clear and lovely scene-setting introductory piece (although I'm not convinced that President Obama was the right person to quote at its conclusion) and an interesting chapter on, again, animus. Also recommended.   


Posted by Paul Horwitz on April 18, 2014 at 12:42 PM in Paul Horwitz | Permalink | Comments (7)

Wednesday, April 16, 2014

Do Chemerinsky and Menkel-Meadow's Views on Curriculum Represent a Consensus View in the Legal Academy?

I'm focusing on only one piece of this op-ed by Erwin Chemerinsky and Carrie Menkel-Meadow. They write:

Some, including the Bar Association’s task force, have suggested that states should reduce the level of undergraduate education required to take the bar exam. Yet the profession benefits enormously by having attorneys who have undergraduate degrees in other fields: This makes them more well rounded and better-educated citizens, as well as better lawyers. Many other countries have begun to recognize this, and nations like South Korea, Japan, China and Australia have recently shifted to the American model of requiring an undergraduate degree before law school.

Another common suggestion — also made by President Obama — is to reduce law school to two years. This is a terrible idea.

The profession needs law schools to produce lawyers who are better prepared to practice law, not less well trained. That would be impossible in two-thirds of the time. If law school were of just two years’ duration, the first things to be cut would be clinical education and interdisciplinary courses, which are the best innovations since we went to law school in the 1970s.

We agree that legal education could benefit from further innovation, but not in the ways many of the critics advocate. Law schools need to teach a greater diversity of subjects to improve legal judgment and decision-making. In this respect, law schools should emulate business, architecture and planning schools. These have adapted to new economic realities by emphasizing the teaching of leadership, corporate governance, new finance and negotiation skills.

Law school faculties, in their teaching and their scholarship, must deal with the emerging problems of the 21st century. Law schools need to develop new courses to provide students with the expertise to deal with the crucial problems of our time in fields like banking law, national security, conflict resolution, food safety, Internet law and migration policy. There should be “problem-based” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace.

None of this will be possible if law school is cut to two years. Sometimes, less is not more. And sometimes, the rhetoric of crisis leads to proposals that are far worse than the actual problems we face.

I agree with the last sentence, as it turns out, although that has nothing to do with whether there is a crisis or not (I'm not sure the label is terribly useful, but neither is it outrageous), or whether law school reform is necessary (law school reform is always necessary). It's not just that treating reform in this area as a response to a crisis may lead to ill-considered reforms, although I think that is true. Rather, I'm worried that if the "crisis" is seen as having passed, it will sap the will and energy to think about useful long-term ways to reform or remake law schools. Law schools are ostensibly faculty-governed, and faculty have an ongoing ethical and professional obligation to monitor what they are doing and think about how they could do it better, crisis or no. I also agree that increasing and even mandating finance and accounting related offerings would be a good idea for law schools. 

That's a side note. What I am really interested is in asking whether Chemerinsky and Menkel-Meadow's views represent a consensus view in the legal academy. I'm pretty sure the answer is "no." Of those interested in law school reform issues, as far as I can tell, many believe there is nothing wrong with a two-year law degree, or with a two-year degree for licensing purposes with the option of additional years of study. Of those who prefer a required third year of study, I suspect that a fair number of them favor it for traditionalist reasons and are not looking to redo the third year altogether; of that group, some hold those views strongly and others are just casual defenders of the status quo. Of those who favor a third year of study that does different things than the current curriculum does, I suspect that many of them would rather have that year emphasize lawyering skills and not "21st century" issues like "national security, conflict resolution, food safety, Internet law and migration policy."

And, sadly, I suspect a large (but shrinking?) number of law professors are still just not that concerned with these issues at all. Given a relatively costless choice like, say, going to an AALS panel on law school reform or hanging out in the hotel lobby, a substantial number will still choose the latter option. (Although I will note that the numbers of people attending those sessions, and voicing interest in such issues at their own institutions, has certainly grown.) In an ostensibly faculty-governed environment in which the faculty often don't govern much and mostly do their own thing in their own classroom, apathy is always a problem.

None of this makes Chemerinsky and Menkel-Meadow wrong, of course. (I think they are.) But I wouldn't treat their views as representative of the legal academy. 

One last word, on “'problem-based'” seminars in fields such as public health, homelessness, environmental habitat regulation and world peace." I think the idea of problem-based seminars on public policy issues is a good one. (And not just public policy issues: they could and should work with issues involving the private sector as well.) In my view, the benefit of such seminars, if they're done right, will derive substantially from bringing in people other than lawyers as students and speakers. Most public (or private) policy issues involve a variety of stakeholders with different skills and interests, and this would be a useful way to learn what (if anything) lawyers can contribute, how they should deal with these different stakeholders, and what the non-lawyer stakeholders think is good or bad from their experience working with lawyers.

But not on "world peace," for God's sake! Too many law schools are already too intent on being "national" schools dealing with national or global issues, emulating schools at the top of the food chain. They are too little concerned with local issues, with the fact that they serve a local market, with forging relationships with local lawyers and stakeholders, and with performing actual services for the state, city, or region in which they are located. Regardless of the conclusions these seminars draw, the recommendations they make, or the service they provide--which, obviously, need not fall into some cliched and rather ideologically particularized vision of "social justice"--it may be that by focusing on difficult local issues, these seminars could provide a useful education to the students, expose students, experts, and stakeholders to each other and help them to sit down at the same table, provide the kinds of recommendations that might be useful to local governments (or private interests) in an age of straitened resources in which many states and localities simply buy public policy solutions off the rack from various think tanks and interest groups, and actually give something back to the region in which a law school is located.

None of this is adequate reason, in my view, for a mandatory third year; and the more national or global the subject these seminars handle, the less useful and educational they will be. Nor must or should these courses have a specific, heavy ideological tilt; they're about problem-solving, not political indoctrination. (Maybe a seminar on public policy issues surrounding a local crime problem would recommend stop and frisk! Or a seminar on why a locality is having trouble growing new businesses would conclude that local licensing and zoning requirements are overly burdensome and monopolistic and should be lessened or repealed! Who knows?) But the idea itself is a good one.   

Posted by Paul Horwitz on April 16, 2014 at 12:08 PM in Paul Horwitz | Permalink | Comments (0)

Saturday, April 05, 2014

Weekend Reading Squared

I'm grateful to Randy Kozel of Notre Dame for reviewing my book First Amendment Institutions. (Hell, I'm grateful to him for reading it.) His SSRN version of the review, forthcoming in the Michigan Law Review, is here, and the abstract follows. The book is available here and makes a fine Passover or Administrative Professionals Day present. 

This Review makes two claims. The first is that Paul Horwitz’s excellent book, "First Amendment Institutions," depicts the institutionalist movement in robust and provocative form. The second is that it would be a mistake to assume from its immersion in First Amendment jurisprudence (not to mention its title) that the book's implications are limited to the First Amendment. Professor Horwitz presents First Amendment institutionalism as a wide-ranging theory of constitutional structure whose focus is as much on constraining the authority of political government as it is on facilitating expression. These are the terms on which the book's argument — and, to a large extent, the leading edge of contemporary institutionalist thinking — ought to be received, understood, and evaluated.

Posted by Paul Horwitz on April 5, 2014 at 01:39 PM in Paul Horwitz | Permalink | Comments (0) | TrackBack

Friday, April 04, 2014

Is a Vote For Campaign Finance Reform a Vote for Brendan Eich? (And Vice Versa)

Whatever I may feel about boycotts and similar actions in general, or the pressure for the resignation of Brendan Eich in particular, I must make clear that I do not think Eich was defenestrated. Jan Masaryk was defenestrated; Eich was subjected to highly disputable uses of market pressures. There's a difference, and as a sometime conservative I don't care for the degradation of the English language or for Marcusian rhetoric.

That said, I think today's Room for Debate argument in the New York Times, and especially the contributions by Leanne Pittsford and Leslie Gabel-Brett, both of whom support the events that led to Eich's deposition, is quite telling. It wasn't until reading those pieces that I fully appreciated the connection between this story and the widespread discussion in the same week of the Supreme Court's decision in McCutcheon and the general debate over campaign finance reform and the First Amendment. Google "McCutcheon" and "money is not speech," or run a Westlaw search for the same phrase, and you will find plenty of believers in this view. (Not everyone, and some supporters of campaign finance laws, including Larry Lessig, have called the slogan an unhelpful "gimmick." But it is a widely repeated slogan--sometimes in the Supreme Court itself.) Yet Pittsford writes, "[L]et’s be honest, writing a $1,000 check is a very specific, assertive action. It's very different than just having a belief. If you’re willing to put down your own money, it means you feel strongly about it." And Gabel-Brett makes quite clear her view that Eich's donation itself was expressive conduct. The two cases are obviously not identical. Still, it is startling to see in the same week, and sometimes roughly from the same side, outrage at the view that money is speech and the vehemently expressed view that Eich spoke by donating money.

Pittsford's contribution is also worth reading in light of the recent and ongoing arguments about the Hobby Lobby case and the question whether corporations can assert a statutory or constitutional burden on religious exercise. Here is a key paragraph of her piece: "The problem is that when you're a progressive company like Mozilla that champions progressive policies and open access, you tend to attract employees who feel the same way, and that creates an open progressive culture, which is one of Mozilla's strongest assets. You can't have a leader who doesn't reflect those views." Interesting use of the second person singular pronoun in light of last week's arguments! 

Posted by Paul Horwitz on April 4, 2014 at 11:47 PM in Paul Horwitz | Permalink | Comments (8) | TrackBack

Plus ca Change

I'm rereading Adam Sisman's very well-done and readable biography of the historian Hugh Trevor-Roper. Here's a passage in which Trevor-Roper, a thoroughly nasty and brilliant man, describes the work of his colleague Lawrence Stone: "[He] wrote articles which, by the triple technique of a challenging thesis (generally a mere exaggeration of a borrowed thesis), a dogmatic ex cathedra style, and a portentous array of documentation . . . were taken everywhere, even by the elect, as being important contributions to scholarship." The next passage in the biography adds: "In later life Stone admitted that he saw nothing wicked about going into a different field of study 'with a pickaxe and digging out the gold and getting out fast.'"

Posted by Paul Horwitz on April 4, 2014 at 12:02 AM in Paul Horwitz | Permalink | Comments (4) | TrackBack